Notice on the decision Ashby Donald and Others v. France (application no. 36769/08) of the European Court of Human Rights
In the case Ashby Donald and Others v. France (application no. 36769/08), the European court of Human Rights ruled that the publication of fashion photos on a website dedicated to fashion and offering free or paying access to the photos falls under the right to freedom of expression. The fact that the photographers have been convicted for copyright infringement does not constitute an illegitimate interference with their fundamental right to freedom of expression.
The case Ashby Donald and Others v. France concerns a conviction for copyright infringement following the publication on the website of a fashion company run by two of the applicants (Robert Ashby Donald and Marcio Madeira Moraes), the U.S. site Viewfinder, without the authorisation of the fashion houses concerned, of photos taken by the other applicant (Olivier Claisse) at fashion shows in Paris in Spring 2003.
After having been convicted for copyright infringement in France (Court of Appeal, Paris, 17 January 2007, confirmed by the Criminal Division of the Cour de Cassation, 5 February 2008), the applicants brought the case before the European Court of Human Rights. Relying on Article 7 of the European Convention of Human Rights (ECHR) (no punishment without law), the applicants alleged that, in refusing to apply an exception to copyright law provided for under an article of the French Intellectual Property Code (IPC), the Cour de Cassation failed to apply the principle that the criminal law must be strictly interpreted. They also complained of a breach of their rights under Article 10 ECHR (freedom of expression).
The ruling of the Court on the alleged infringement of Article 7 ECHR:
Under French law there are exceptions to copyright or authors’ rights. According to one of these exceptions, which is provided for in Article L. 122-5 9° IPC, when a work of graphic art has been disclosed, the author cannot prohibit the reproduction or representation of all or part of this work, in the press or through audio-visual or online means, if this work has been reproduced or represented with the sole aim of providing immediate information. According to the applicants, Article L. 122-5 9° IPC should also apply to the creations of designers and fashion houses, creations which are also protected under copyright law according to Article L. 112-2 14° IPC. The applicants considered that by refusing to interpret Article L. 122-5 9° IPC in this sense and by refusing to apply the exception to creations of designers and fashion houses, the Cour de Cassation adopted a narrow interpretation of this provision and extended the scope of copyright infringement; there was punishment without law.
The Court of Human Rights did not accept the applicants’ argumentation and considered that the Cour de Cassation did not infringe Article 7 ECHR by its interpretation of one of the exceptions to the rule protecting the legitimate rights of authors.
The ruling of the Court on the alleged infringement of Article 10 ECHR:
The Cour de Cassation considered that in this case the photographers could not be protected against a conviction for copyright infringement. The applicants saw this ruling as an unjustified interference in their right to freedom of expression.
The European Court of Human Rights considered that even though the photos were published on a site dedicated to fashion and even though the photographers had a lucrative aim in mind, the online publication of the photos by the photographers fell under their right to freedom of expression. And the photographer’s condemnation for copyright infringement interfered with their right to freedom of expression.
The European Court of Human Rights considered that such an interference violates Article 10 ECHR, unless this interference is prescribed by law, pursues one or more legitimate aims and is necessary in a democratic society, as provided for in Article 10 § 2 ECHR.
In the present case, the European Court of Human Rights considered that the interference was prescribed by law because the photographers had been convicted on the basis of Articles 335-2 and 335-3 IPC. It also considered that the interference pursued one or more legitimate aims as the conviction aimed to protect the rights of others, the copyright of designers and fashion houses, copyright being protected as part of the right of ownership under Article 1 of the 1st Protocol to the ECHR.
But was this interference also necessary in a democratic society?
To judge whether the interference due to the condemnation was necessary, the European Court of Human Rights analysed if the interference was proportionate to the pursued legitimate aim.
In this context, the European Court of Human Rights noted that the photos had not been published because of a pressing social need or to be part of a debate of general interest. The Court also noted that the applicant’s punishment remained of limited consequences for them. In the end, based on this, the European Court of Human Rights ruled that the interference was proportionate to the pursued legitimate aim and that there was no violation of Article 10 ECHR or of the right to freedom of expression.