COPYRIGHT CLAIM
SAFAROV v. AZERBAIJAN
In a recent decision of 1 September 2022 [Safarov v. Azerbaijan], the European Court of Human Rights [ECtHR] found that the state’s unlawful and arbitrary application of national intellectual property law in disputes between private parties constitutes a violation of Article 1 of Protocol No. 1 to the European Convention of Human Rights [ECHR].
Mr. Rafig Firuz oglu Safarov (Applicant) is the author of a book entitled “Changes in the ethnic composition of the people of Irevan Governorate in the nineteenth and twentieth centuries”, which was published in physical format in 2009. A year later, in 2010, the Irali Public Union, a nonprofit organization, published an electronic version of the applicant’s book on its website.
Upon the request of the Applicant, the book was removed from the website, although, it had already been downloaded 417 times. The Applicant brought claims for pecuniary and non pecuniary damages before the Azerbaijani courts following that Irani Public Union had reproduced and published an electronic version of his book without authorization, violating thus the Azerbaijani Law on Copyright and Related Rights.
After exhausting the national instances, which had dismissed the claims, the Applicant appealed the decision of the Supreme Court to the ECtHR. Although Irali Public Union did not pursue an economic interest in publishing the book online, the Applicant argued that his copyright had been infringed and that the Government of Azerbaijan had violated Article 1 of Protocol No. 1 of the ECHR. The Government of Azerbaijan argued that Irani Public Union had published the book only for informational, non-commercial purposes and that the Applicant had not demonstrated any suffered damages.
The ECtHR held that:
(1) that protection of intellectual property rights, including the protection of copyright, falls within the scope of Article 1 of Protocol No. 1 to the ECHR.
(2) in disputes between private parties, the State incurs a positive obligation to protect the right to property (intellectual property) – in the present case, the Applicant did not allege that the copyrights were not sufficiently protected by Azerbaijani law but that the application of the existing law by the domestic courts was unlawful and arbitrary).
(3) the national courts dismissed the Applicant’s claims based on legal exceptions provided in the Law on Copyright and Related Rights, more precisely:
- Reproduction (partly) of published works for personal purposes from a physical person is permitted, without the author’s authorization or payment of royalties: in the present case, Irali Public Union was a legal person and it had not used the book exclusively for personal purposes, but made it available online for an unlimited number of readers.
- Libraries, archives and educational institutions were entitled to reproduce works without the author’s authorization, in specific cases: in the present case, firstly, the Supreme Court did not elaborate why the website would qualify as a library and secondly, it did not explain if Irali Public Union would fall under on of the specific cases in which reproduction was allowed without authorization.
- application of the rule of exhaustion of the right to distribution: this rule refers to physical copies and in the present case, the author had not authorized the reproduction of electronic copies of the book, but had only published physical copies. Consequently, this rule did not justify the electronic format and online publication of the book without the author’s consent.
- The Court concluded that the Azerbaijani courts had failed to provide sufficient reasons for their findings and had failed to provide positive protection of intellectual property as required by Article 1 of Protocol No. 1 ECHR. However, the Court did not award the sum of damages requested by the applicant, which would have amounted to a total of 128,286 Euros in pecuniary and non-pecuniary damages, but instead awarded a global sum of 5,000 Euros.
*Rule of exhaustion of the right to distribution means that once goods are sold in a specific market by the owner or with his or her consent, they will not be able to prevent the resale of such goods in that market by others.
