By Guest author

Copyright has seen a spectacular rise in importance, both politically and legally, in recent decades. The digitisation of cultural and scientific goods has led many rights holders to see strengthened copyright protection as the only means of ensuring the survival of the cultural industry. To a large extent the rights holders’ quest for more legal protection has succeeded – today’s copyright protections are as strong and broad as never before.

According to Farida Shaheed, the United Nations (UN) Special Rapporteur in the field of cultural rights, this has caused increasing tension between copyright law and human rights law. Her report on “Copyright policy and the right to science and culture” is diplomatically worded but argues strongly that we need to pay more attention to the human rights repercussions of granting authors – and rights holders – exclusive rights over authorial works.

Much of the report is based on the two principles enshrined in article 27 of the Universal Declaration of Human Rights. Paragraph one thereof bestows upon everyone the right to culture and science – the right to participate in the cultural life of a community and to profit from the advancement of science. This paragraph is complemented by a second one, which asserts that authors’ moral and material interests must be protected.

The second paragraph of article 27 is often interpreted as supporting copyright protection (while the first paragraph provides the rationale for exceptions and limitations). Shaheed’s central thesis is that this analysis is wrong. She writes that “[t]he human right to protection of authorship is […] not simply a synonym for, or reference to, copyright protection, but a related concept against which copyright law should be judged. Protection of authorship as a human right requires in some ways more and in other ways less than what is currently found in the copyright laws of most countries.”

In the European Parliament, there are two reports currently being discussed, one by German Pirate Party parliamentarian Julia Reda and one by Czech conservative parliamentarian Pavel Svoboda.

Copyright regimes are for example lacking, says Shaheed, when it comes to enhancing authors’ unequal bargaining positions vis-à-vis corporate rights holders. This is also something that EU legislators have realised, and Reda’s Draft Report on the implementation of the InfoSoc Directive calls for improving the “contractual position of authors and performers”.

It also follows from the report’s central thesis that the protection of authors’ material interests does not require granting them exclusive rights. In fact, as Shaheed writes, authors’ material interests concern their ability to “enjoy an adequate standard of living”, and this could be guaranteed also with a “right to remuneration”. Therefore, a legal system that ensures an adequate standard of living for authors using, for instance, statutory licenses could also serve to protect authors’ material interests. Statutory licenses allow the use of copyrighted works without the permission of the author if adequate compensation is paid.

Shaheed also underlines the potential of open licenses, which she calls “an agile, low-overhead copyright-management regime, benefiting both copyright owners and licensees.” Therefore states could do more to (financially) support open licenses – such as Creative Commons – thereby ensuring both authors’ livelihoods as well as free access to culture and science. At the EU level, there is unfortunately little support for such schemes. While Svoboda’s Draft Report on intellectual property rights (IPR) enforcement mentions the development of new business models, there is no reference to the potential of open licenses.

The human rights impact of copyright regulations must always be assessed, both at national and international level. In this regard it is worrying that Svoboda’s Draft Report completely forgoes any mention of fundamental rights. His Draft Report is worrying in other regards, too. Shaheed writes that “website blocking, content filtering and other limits on access to content” could lead to disproportionate infringements of people’s freedom of expression and their right to science and culture. Therefore “[a]lternatives to criminal sanctions and blocking […] should be envisaged”. This points in a direction diametrically opposed to the one pursued by Svoboda.

According to the UN report “[c]opyright exceptions and limitations constitute a vital part of the balance that copyright law must strike.” Here, Reda’s Draft Report chimes well with many of the ideas advanced in the UN report. Her intention to introduce an “open norm” to complement the existing limitations and exceptions can be seen as combining the advantages of a fair-use system – flexibility – with that of clearly defined exceptions – legal certainty. And making the exceptions and limitations mandatory is a step towards fulfilling “the positive obligation to provide for a robust and flexible system of copyright exceptions and limitations.”

Free access to culture and knowledge should only be limited if it is compatible with the right to science and culture and if it “is strictly necessary for the promotion of general welfare.” This means that we need well-researched and unbiased information about copyright’s effects on general welfare – something that is sadly absent at EU level. EU institution’s continued use of statistics that have been proven to be inadequate only attests to the disproportionate influence of rights holders, who – as Shaheed writes – “must not be presumed to speak for the interests of authors.”

The UN report also calls for transparency and public participation in policy-making. The EU’s record in this matter is not exactly stellar and could most certainly be improved. Anti-Counterfeiting Trade Agreement (ACTA) was negotiated amid high secrecy, and today’s copyright reform suffers from an imbalance where rights holders have far more influence than both users and authors.

Corporate rights owners’ IPR are not protected as human rights, writes Shaheed. Even if the EU Charter of Fundamental Rights calls for the protection of intellectual property – unlike the UN Convention, which only contains a general right to property – this does not require any specific type of copyright regime. Human rights considerations do not mandate a specific type of copyright protection, but merely oblige states to protect the intellectual property they have instated.

The report is bold in making very clear the connections – and sometimes the lack thereof – between copyright law and human rights law. It puts the stress back on the essentials – the interests of authors and society at large – and thereby manages to envision a protection of authorial works that is fundamentally more human than most of today’s existing regulations. If the EU wants to live up to its often proclaimed status as a beacon of human rights, it had better take the UN report into account.

UN Special Rapporteur Farida Shaheed’s report on copyright policy and the right to science and culture (24.12.2014)
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/Documents/A_HRC_28_57_ENG.doc

Charter of Fundamental Rights of the European Union (30.3.2010)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF

Draft Report on the implementation of the InfoSoc Directive by Rapporteur Julia Reda (15.01.2015)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-546.580%2b02%2bDOC%2bPDF%2bV0%2f%2fEN

Draft Report on the enforcement of intellectual property rights by Rapporteur Pavel Svoboda (05.02.2015)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-549.140%2b01%2bDOC%2bPDF%2bV0%2f%2fEN

(Contribution by Julian Hauser, EDRi intern)

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