In yet another sign that the water will never be safe when it comes to proposals to grant copyright owners ever greater rights beyond the current Incredible Hulk level, the groundwork is being laid for a new source of law: human rights. In this battle, the push may be limited to individual copyright owners, although recently at an International Governance Forum meeting in Rio on the proposed broadcast treaty, a speaker from the Council of Europe, billed as an “international human rights attorney” stated that intellectual property rights are human rights. I confess to being moved to tears by European human rights attorneys taking up the cause of very large U.S. broadcasting corporations: Donald Rumsfeld was so wrong.
The beauty of the approach to new rights as human rights is that according to some of its advocates it doesn’t have to rely on new legislation – much like Jimmy Stewart woke up one morning and discovered to his amazement that he had been speaking prose his whole life – some day soon we may wake up and find that vague human rights declarations bind nations to grant authors new, formidable rights. Like Winston Churchill, I say we must oppose this effort with everything we have:
We shall go on to the end, we shall fight in France,
we shall fight on the seas and oceans,
we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be,
we shall fight on the beaches,
we shall fight on the landing grounds,
we shall fight in the fields and in the streets,
we shall fight in the hills;
we shall never surrender
The effort to shoehorn copyright within human rights is not an overnight phenomenon, see e.g., F. Dessemontet, ‘Copyright and Human Rights’, in: Jan J.C. Kabel and Gerard J.H.M. Mom (eds.), Intellectual Property and Information Law – Essays in Honour of Herman Cohen Jehoram, The Hague/London/Boston: Kluwer Law International 1998, p. 113; M. Vivant, ‘Le droit d’auteur, un droit de l’homme’,  174 RIDA 60; A. Kéréver, ‘Authors’ rights are human rights’,  32 Copyright Bulletin 18. Article 27 (2) of the 1948 Universal Declaration on Human Rights reads:
“Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Article 19 of the Convention states, “Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” And Article 27(1), which proponents of copyright as a human right do not cite in favor is Article 27(2), reads, “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”
Article 15(1)(c) of the United Nations Covenant on Economic, Social and Cultural Rights reads: “The States Parties to the present Covenant recognize the right of everyone: […] (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” But neither of these lofty statements requires implementation in any specific form, and for good reason: that was the job of the Berne Convention. Nor do they forbid any exceptions to the rights; phrased more accurately, they do not state how far the author’s rights must go.
On November 21, 2005, the UN High Commissioner for Human Rights issued a document (called General Comment No. 17) on Article 15(1)(c), available here.
The document is a call to arms by fellow travelers, one of whom appears to be Professor Graeme Austin of the University of Arizona law School. In a paper authored with a law student at the school, and posted here on ssrn.com, Professor Austin tries to make the case for copyright as human right. Here I face a problem: even though the paper has been posted on ssrn.com and is accessible to anyone around the world, and may be freely downloaded from that site, there is the following legend on the bottom of every single page: “Graeme W. Austin, Copyright Law Reform Through a Human Rights Lens. Working draft: please do not quote or cite without permission. To be published in: Intellectual Property and Human Rights (Paul Torremans, ed. Kluwer Law International 2008). I fear I may have already contravened the legend merely by quoting it. What should a conscientious person do when faced with such a dilemma: a freely available work that the author has tried to make not citable or quotable from? Is doing so bad manners, copyright infringement, or, dare I ask, a violation of human rights? This last possibility would be ironic since Professor Graeme attempts to justify treating copyright as a human right in part by asserting concerns over censorship of authors (see pages 13-14), but as in all paeans by maximalists, there is also only one author, the copyright owner who claims foul, even if crying foul suppresses other authors; those other authors either are not authors or are a subspecies of authors who are not entitled to human rights.
Professor Graeme also trots out the old saw of protecting what he calls creators’ vulnerability; we are told attacks against authors, both blatant and covert continue today, although none of the examples cited have a thing to do with copyright issues. (see pages 11-14. Again, only one type of author is vulnerable; those authors who have been subject of oppressive claims of infringement by other authors in an effort to stifle them are apparently not authors or are a subspecies of authors who are not entitled to human rights.
The purpose for asserting a human right of copyright is clear enough though: to avoid the meager limitations and exceptions that exist, and to avoid any sort of check on copyright by messy theories of instrumentalism, instrumentalism being the theory that copyright is designed to serve a socially useful purpose, as compared to vesting copyright owners with the unfettered right to stop all uses of their work. Lest readers think I am overstating this, I will do what the legend on each page says I shouldn’t do, quote from the article. I do this not to make a point about the legend, which I find obnoxious, but because I cannot criticize Professor Austin’s article without doing so: the passage in question is so remarkable that it must be read, for in it he expresses quite clearly the human rights agenda. Here it is (pages 8-9):
Considerable embarrassment for the human rights agenda might be caused if a human right to intellectual property were understood as coinciding exactly with the :instrumentalist” intellectual property rights protections required by the TRIPS Agreement. Rather than providing a source of limiting principles, human rights could instead establish a basis for assertions of requirements for stronger protections than are provided by existing intellectual property laws. If human rights “trump” intellectual property law, their power to constrain intellectual property may be undermined if human rights law itself requires protection of intellectual property.
That last sentence is an oxymoron, and he later acknowledges (quoting again!,for the same reason, here from pages 34-35):
[L]egal obligations relating to creators; human rights do not of course enjoy the same dispositive ‘bite’ as specific obligations in the international intellectual property regime. But creators’ human rights should have at least some, and perhaps powerful, normative claims that should be reckoned with in the context of domestic law reform agenda. Acknowledging creators’ human rights may deepen our understanding of the implications of law reform deliberations.
So what are the human rights in question: fish or fowl, real rights in the sense of obligations that are binding on states, or are lofty statements like those in the U.S. Declaration of Independence that express principles but not law. And what are the rights at issue any way? Would they reach my quoting in this blog against the author’s legend? I can’t say I know, but I do know that they would not, according to the article, be subject to the U.S. constitutional objective of promoting the progress of science: no such grubby aspirations for human rights advocates!
At this point one might sit back and say, ah idle academic prattle. Not so, arguments are being made in EU courts on the issue, and in the recent UK Lord Triesman follow up report to Gowers, this remark is made in paragraph 37:
Ministers will be required to make a statement in accordance with section 19 of the Human Rights Act of 1998 that the provisions of any amending instrument are, in their view, compatible with the European Convention on Human Rights (“ECHR”). The primary relevant ECHR consideration is whether Article 1, Protocol 1 ECHR is engaged. We will need to consider this once the proposals are developed following this consultation and will comment further when we consult on the draft statutory instrument.
How, for example, will permissible limitations and exceptions work out with the famous three-part test, or parodies, if as Professor Austin advocates, the instrumentalist approach to copyright as a human right is not employed: so what if the use doesn’t harm the market; all that matters is that the authors’ dignity has been impaired. Indeed, in the U.S., a prominent scholar at a New York City University opposed permitting fair use to act as a defense to the artists’ rights granted in the 1990 Visual Artists Rights Acts. Fortunately, I convinced Congress otherwise, but these and other issues will be raised again if the human rights approach gains traction.
Winston Churchill, where are you now that we need you?