• Rosie Burbidge

Are IP rights protected by the ECHR?


In a rare ruling in an intellectual property case, the European Court of Human Rights (ECtHR) has upheld a complaint by a copyright owner, Mr Rafig Firuz oglu Safarov, against the government of Azerbaijan.


Safarov is the author of “Changes in the ethnic composition of the people of Irevan Governorate in the nineteenth and twentieth centuries”, a book published in 2009. In 2010, the Irali Public Union published an electronic version of the book online; this was downloaded 417 times before it was removed.


Safarov’s claim for damages for copyright infringement was rejected by the courts in Azerbaijan.


ECtHR judgment

In its judgment, the ECtHR confirmed that the protection of IP rights, including copyright, falls within the scope of Article 1 of Protocol No 1 of the European Convention on Human Rights. (The question had also arisen in a 2007 case concerning the Budweiser trade mark.)


The Court added that “the reproduction of the applicant’s book and its online publication, without his consent, affected his right to peaceful enjoyment of his possessions” and said the State has a “positive obligation to take necessary measures to protect the right to property”.


In this case, the Azerbaijan courts had found that the defendant’s acts fell within Article 18 of the Law on Copyright, which provides an exception for libraries, archives and educational institutions. But the Court said:


In the Court’s view, seeing that the defendant 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 was needed to justify the application of Article 18 to the applicant’s case.”

Moreover, there was no evidence that Safarov had authorised the reproduction of the book and communication to the public in a digital form.


Therefore, the Court concluded that Azerbaijan failed to discharge its positive obligation under Article 1 of Protocol No. 1 to protect intellectual property notably through effective remedial measures.


It awarded Safarov €5,000 in damages.


While this case is relatively small and local, the decision confirms that IP rights are protected by the Convention and national laws must be interpreted correctly. Given that all 46 Council of Europe member states are parties to the Convention, it is a reminder to courts throughout Europe that their work is being monitored!


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


#copyright #ECHR #convention