ARTICLE 19 has welcomed the annual report of Farida Shaheed, the Special Rapporteur in the field of cultural rights, presented to the 28th Session of the Human Rights Council in March 2015. The Special Rapporteur’s final report subjects copyright laws and policies to a thorough human rights analysis, referencing “the Right to Share” Principles, developed by ARTICLE 19 and a group of international experts.
The report draws on Article 27 of the Universal Declaration on Human Rights and Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which protect both authorship and cultural participation, and questions the assumption that strong copyright enforcement is synonymous with advancing either of these interests.
The report stresses that copyright is not a human right, but that examined through a human rights lens it suffers from a dual deficiency: at times failing to adequately protect authorship, while also unnecessarily limiting cultural freedom and participation.
The report examines how to advance the human rights interests of authors (not necessarily copyright holders), how to empower new creativity, and enhance opportunities for participating in cultural life.
In its oral intervention welcoming the report, ARTICLE 19 emphasised how essential freedom of expression is to the right to participate freely in the cultural life of society, enjoying the arts and sharing in scientific advancement. However, we also noted how the right to freedom of expression is increasingly being eroded on grounds of protecting copyright, with the Internet being at the centre of a disturbing proliferation of copyright claims.
ARTICLE 19 welcomed the conclusions and recommendations of the Special Rapporteur’s report, many of which reflect concerns addressed in The Right to Share Principles. Highlights include:
- That international policy making on copyright, typified by the Anti-Counterfeiting Trade Agreement and Trans-Pacific Partnership, suffers a “democratic deficit”, where corporate interests are represented but civil society and users excluded, “at the expense of public welfare or human rights”;
- That “aggressive” responses to copyright infringement, such as denial of Internet access and website blocking, presents serious human rights concerns;
- Criminal sanctions for non-commercial copyright infringement, as well as abusive copyright claims and disproportionate civil damages awards, and intermediary liability, are likely not compatible with the right to freedom of expression;
- That positive measures should be encouraged to promote access to culture, in particular among disadvantaged groups, to create and expand the public domain. This includes the broad interpretation of copyright exceptions, and efforts to encourage innovative licensing regimes such as “creative commons”;
- That States should carry out impact assessments to determine the effect of copyright regimes on the protection of fundamental rights, including freedom of expression.
Several States also took the floor during the interactive dialogue with the Special Rapporteur to welcome the report. Estonia spoke of its plans to modernise its intellectual property framework, considering the importance of freedom of expression online, and also stressed the importance of participation in copyright policymaking.
The representative for Brazil, Ms. Maria Luisa Escorel De Moraes, also made a particularly strong intervention in support of the recommendations, calling for greater attention by the Human Rights Council to measures implemented to combat digital “piracy” such as website blocking and content filtering. She outlined that these responses to copyright infringement “could result in restrictions not compatible with the right to freedom of expression and the right to science and culture, such measures could also result in violations of the right to privacy.”
ARTICLE 19 congratulates Farida Shaheed on her final report to the Human Rights Council as mandate holder in the field of cultural rights, and urges States to consider how they can build upon this report to address the human rights impact of over-rigorous copyright enforcement.