HRC28: Statement by Farida Shaheed, Special Rapporteur, on Copyright policy and the right to science and culture

On Wednesday, 11 March 2015, Farida Shaheed, the United Nations Special Rapporteur in the field of cultural rights presented her seminal report on Copyright policy and the right to science and culture (A/HRC/28/57) at the 28th session of the Human Rights Council in Geneva.

Highlights from the report's recommendations include the following:

109. WIPO members should support the adoption of international instruments on copyright exceptions and limitations for libraries and education. The possibility of establishing a core list of minimum required exceptions and limitations incorporating those currently recognized by most States, and/or an international fair use provision, should also be explored.

110. WTO should preserve the exemption of least developed countries from complying with provisions of the TRIPS Agreement until they reach a stage of development where they no longer qualify as least developed countries.

116. States should ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, and ensure that their copyright laws contain adequate exceptions to facilitate the availability of works in formats accessible to persons with visual impairments and other disabilities, such as deafness.

118. Further studies should be undertaken to examine what reforms are needed to better enable access to copyrighted materials in all languages, at affordable prices.

In terms of the relationship between intellectual property rights and human rights, the Special Rapporteur noted,

It is sometimes claimed that intellectual property rights are human rights, or that article 15, paragraph 1 (c), of the International Covenant on Economic, Social and Cultural Rights recognizes a human right to protection of intellectual property along the lines set out by the TRIPS Agreement and other intellectual property treaties. The Committee on Economic, Social and Cultural Rights has stressed that this equation is false and misleading. Some elements of intellectual property protection are indeed required — or at least strongly encouraged — by reference to the right to science and culture. Other elements of contemporary intellectual property laws go beyond what the right to protection of authorship requires, and may even be incompatible with the right to science and culture.

The Special Rapporteur's oral presentation of her report follows. Stay tuned for live updates from the Human Rights Council including the responses of the European Union, Iran, Paraguay, France, Portugal, the United States and more.

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Statement by Ms. Farida Shaheed

28th session of the Human Rights Council

11 March 2015

Honourable Chair, Excellencies, distinguished delegates, ladies, gentlemen, and all others;

I am honoured to take the floor before the Human Rights Council, for the last time in my capacity as Special Rapporteur in the field of cultural rights.

Today, I shall present my last thematic report to the Human Rights Council on copyright policy and the right to culture and science (A/HRC/28/57), and will share some observations to conclude my six-year tenure as Independent Expert and then Special Rapporteur. I will also report on the country visit I undertook in Viet Nam from 19 to 29 November 2013 (A/HRC/28/57/Add.1)

Mr. President,

In 2014, my research focused on intellectual property regimes and the enjoyment of the right to science and culture. Given the complexity of the issue, I have divided the work into two consecutive reports: the first, before you today, concentrates on the interface of copyright policy with the right to culture and science (A/HRC/28/57). The second, relating to patent policy, will be presented to the General Assembly in October 2015.

As you know, there are unresolved tensions between intellectual property laws and human rights. Approaching them through the lens of the right to science and culture offers a promising space for reconciliation, as article 15 of ICESCR simultaneously calls for the protection of the right to take part in cultural life, the right to enjoy the benefits of scientific progress and its applications, and the right to benefit from the protection of authorship. Cultural participation and the protection of authorship are both human rights principles designed to work in tandem. Striking an appropriate balance between the two goals is thus essential, even if challenging.

Copyright laws prohibit much more than literal copying. They generally also render illegal translating, publicly performing, distributing, adapting or modifying a copyrighted work without permission or licence from the copyright holder. Copyright protection is thus fundamental to the system of licensing and payment for access to creative work that drive various cultural industries. Copyright holders, who may not be the original author, usually monetize a wide variety of uses and may prevent adaptations they find objectionable. Consequently, the creative freedom of others to build upon and adapt existing cultural works may become dependent upon their ability to pay a licensing fee.

Partly in response to this concern, copyright laws incorporate exceptions and limitations, which preserve the freedom of other artists and the general public to use copyrighted works in certain ways without the copyright holder’s permission. National practices on copyright exceptions and limitations vary significantly, however.

A widely shared concern stems from the tendency for copyright protection to be strengthened with little consideration to human rights issues. The tendency for trade negotiations to be conducted amid great secrecy, with substantial corporate participation but without an equivalent participation of elected officials and other public interest voices, adds to this concern.

In my report, I advocate a human rights based approach to copyright issues, which would help focus attention on important themes that may be lost when copyright is treated primarily in terms of trade: the social function and human dimension of intellectual property, the public interests at stake, the importance of transparency and public participation in policymaking, the need to design copyright rules to genuinely benefit human authors, the importance of broad diffusion and cultural freedom, not-for-profit cultural production and innovation, and the special consideration for the impact of copyright law upon marginalised or vulnerable groups.

I would like to highlight some key points of my reports:

1) First, intellectual property rights are not human rights. This equation is false and misleading. In some ways, copyright policy falls short of adequately protecting authorship, in other ways it often goes too far, unnecessarily limiting cultural freedom and participation.

2) Second, authors must be distinguished from copyright-holders. The right to protection of authorship remains with the human author(s) whose creative vision gave expression to the work, even when the copyright interest has been sold to a corporate publisher or distributer. We should always keep in mind that copyright regimes may under-protect authors because producers/publishers/distributors and other “subsequent right-holders” typically exercise more influence over law-making than individual creators, and may have divergent and possibly opposing interests to those of the creators.

3) Third, 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. This holds true for both the moral and the material interests of authors.

In this regard, it is important to look beyond moral rights already recognized in copyright regimes to discern additional or stronger moral interests from a human rights standpoint, such as, in particular, the interest of artists and researchers in creative, artistic and academic freedom, freedom of expression, and personal autonomy.

Creators often need corporate rights holders: to develop innovative ways of delivering cultural works to the public, provide capital to finance high-budget cultural productions, and free artists from many of the burdens of commercializing their work. The human right to protection of authorship requires that copyright policies be carefully designed to ensure that authors (and not only copyright holders) benefit materially. An appropriate balance is crucial, recognizing that creators are both supported and constrained by copyright rules.

I would like to stress that copyright laws are only one element in the protection of authorship and should be understood as part of a larger set of policies to promote the cultural sector and the right to science and culture. Artistic livelihoods may, and should, be supported in other ways.

In this regard, some key conclusions and recommendations are as follows:

- States bear a human rights obligation to ensure that copyright regulations are designed to promote creators’ ability to earn a livelihood and to protect their scientific and creative freedoms, the integrity of their work and their right to attribution.
- Given the inequality of legal expertise and bargaining power between artists/creators on the one hand, and their publishers and distributors on the other, States should protect artists from exploitation in the context of copyright licensing and royalty collection. In many contexts, legal protections that may not be waived by contract will be most appropriate. Enforceable rights of attribution and integrity, droit de suite, statutory licensing and reversion rights are recommended examples.
- States should further develop and promote mechanisms for protecting the moral and material interests of creators without unnecessarily limiting public access to creative works, through exceptions and limitations and the subsidy of openly licensed works.
- States are encouraged to consider policies on labour practices, social benefits, funding for education and the arts, and cultural tourism, etc., to support artistic livelihoods.

4) Fourth, exceptions and limitations of copyright — defining specific uses that do not require a license from the copyright holder — should be developed to ensure the conditions for everyone to enjoy their right to take part in cultural life by permitting legitimate educational usages, expanding spaces for non-commercial culture and making works accessible for persons with disabilities or speakers of non-dominant languages.

The main challenge, I believe, is that international copyright treaties generally treat copyright protections as mandatory, while largely treating exceptions and limitations as optional. The standard for judging whether a particular exception or limitation is permissible under international copyright law is not articulated with precision. This is why one of my recommendations is to explore the possibility of establishing a core list of minimum required exceptions and limitations incorporating those currently recognized by most States, and/or an international fair use provision.

5) Our world is changing, and today open licensing is contributing to create a “cultural commons,” in which everyone can access, share and recombine cultural works. These are particularly important for the dissemination of scholarly knowledge and are increasingly encouraged in academic institutions. Such models should be strongly supported.

Creativity is not a privilege of an elite segment of society or professional artists, but a universal right. Copyright law and policy must be designed with sensitivity to populations that have special needs or may be overlooked by the market. From the human rights perspective, copyright policies must be judged by how well they serve the interests of human authors, as well as the public’s interest in cultural participation.