The constitutional turn: balancing copyright and freedom of expression in English law

Abstract

ABSTRACT This article considers case law from the courts of England and Wales on the balance between copyright and freedom of expression and how this has developed over the last 50 years or so. Although there has been no fundamental change in the approach of the English courts to this issue, the enactment of the Human Rights Act 1998 and the jurisprudence of the Court of Justice of the European Union have led to an acceptance that decisions in cases involving conflicts between copyright and freedom of expression need to be grounded in the European human rights framework. Like the CJEU, the English courts have generally preferred to treat human rights considerations as influencing the interpretation and application of the internal mechanisms in copyright law rather than as supplying an external corrective mechanism. In that sense progress has been made towards the constitutionalisation of copyright law.