Reproduction of a book and online publishment of it, without the permission of the author! Violation of right to property
JUDGMENT
Safarov v. Azerbaijan 01.09.2022 (app. no. 885/12)
SUMMARY
Book copyrights. Right to respect for property. Author protection.
The applicant is a writer. Without his consent, his entire book was reproduced by a private individual and presented online on his website. The applicant brought an action for damages, which was dismissed by the national courts with final judgment. He brought an action for infringement of the right to property, due to the failure of the state to protect his copyright. He also claimed that the decisions of the domestic courts lacked sufficient reasoning.
The Court recalled that every state has a positive obligation to take the necessary measures to protect intellectual property rights. In the present case, he observed that the legislation of the respective state sufficiently protected this right, but also defined some exceptions.
In this case it found that the exceptions should not apply because: a) the book was reproduced in its entirety on the internet, b) it was not reproduced for educational purposes permitted by law but for commercial purposes and c) the distribution right had not been exhausted as there were enough copies to sale.
The ECtHR held that the domestic courts had not given sufficient reasons in their decisions not to apply the law on the protection of intellectual property and had not provided protection to the applicant. Strasbourg unanimously found a violation of Article 1 of the First Additional Protocol and awarded EUR 5,000 in damages and non-pecuniary damage.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Rafig Firuz oglu Safarov, is an Azerbaijani national who was born in 1959 and lives in
Baku. He is the author of a book, published in 2009, on the history of Azerbaijan.
The case concerns the alleged infringement of the applicant’s copyright on account of the
unauthorised reproduction of his book and its online publication by a private party without his
authorisation or paying him any royalties. His subsequent civil claim was dismissed, as was ultimately
his cassation appeal.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on
Human Rights and Article 6 (right to a fair hearing) of the European Convention, the applicant
complains of the State’s failure to protect his intellectual property interests and that the domestic
courts’ judgments in his case had not been reasoned.
THE DECISION OF THE COURT…
Article 1 of Protocol No. 1: The reproduction of the applicant’s book and its online publication, without his consent, had affected his right to peaceful enjoyment of his possessions. Although the dispute in the present case had been between private parties, the State had a positive obligation to take necessary measures to protect the right to property.
The applicant had not claimed that the rights of authors had not been sufficiently protected by domestic law, but that the application of existing law by the courts in his case had been unlawful and arbitrary. Under domestic law, as a general rule, authorisation by the author and payment of royalties had been required in order to use his or her work. However, the domestic courts had justified the defendant’s actions relying mainly on several domestic law articles providing for exceptions to that general rule, namely:
– Reproduction for exclusively personal purposes: in the present case, however, the defendant had been a legal person and had not used the applicant’s book exclusively for personal purposes but had made it available online for an unlimited number of readers. In addition, that domestic law exemption did not apply to reproduction of books in their entirety, and the domestic courts had not established that the applicant’s book had not been reproduced in its entirety.
– Reproduction by archives and education institutions in specific cases: the Supreme Court had not elaborated on the applicant’s argument that the defendant did not belong to any of the said categories, noting only that his book had been published under the library section of the defendant’s website with the purpose to provide information on the country’s history. Similarly, the Government submitted that there had been no commercial purpose. While the lack of such a purpose had been relevant in application of the relevant domestic provision, it had not been the only element to be considered. It had been incumbent on the domestic courts to interpret the relevant provision as covering the online services offered by the defendant under the notion of “libraries”. Even assuming that those services could be regarded as covered by that notion, the courts had failed to mention which specific case, provided for under the domestic provision, could justify the book’s reproduction without authorisation. Since the defendant had made the applicant’s book freely available online and therefore practically to a world-wide audience, not to visitors of a library building, elaborate reasoning by the courts had been needed to justify the application of that domestic provision.
– Exhaustion of right to distribution: The rule on exhaustion of right to distribution had referred to lawfully published and fixed copies of works put into circulation by sale as tangible objects. While the applicant had published his book and physical copies had been available in the book market, nothing suggested that he had ever authorised its reproduction and communication to the public in a digital form. The Supreme Court had not explained why it had considered that domestic provision relevant to the circumstances of the case.
Overall, the domestic courts had failed to provide reasons establishing that the above-mentioned domestic law exceptions could constitute legal grounds for the situation at hand. The respondent State had therefore failed to discharge its positive obligation.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of both pecuniary and non-pecuniary damage.
