IP Rights Arise In UN Debate On The Right To Participate In Cultural Life

By Catherine Saez
Intellectual property rights came into play in a recent discussion on the right of all humans to take part in cultural life organised by the United Nations Committee on Economic, Social and Cultural Rights (CESCR).

The right to take part in cultural life is an accepted fundamental human right, mentioned in several international legal instruments, such as the Universal Declaration of Human Rights or the International Covenant on Economic, Social and Cultural Rights, which in Article 15(1a), recognises the right of everyone to take part in cultural life. The CESCR implements the covenant.

Discussions at the 9 May event were organised around four main themes: Exploring the definition of cultural life in the context of human rights; analysing the right to have access to and participate in cultural life; identifying the linkages between cultural rights and the universality of human rights; and assessing the individual and collective dimensions of the right to take part in cultural life.

Speakers underlined that cultural rights should be considered as fundamental rights and tried to define the right to culture, including questions on cultural freedom.

The impact of copyright on access to culture was presented by Joost Smiers, professor emeritus at the Utrecht School of the Arts in the Netherlands. He created a stir in the audience when he said that two main factors were preventing people to take part in cultural life: The system of copyright and the domination of cultural markets.

He advised that copyright be abolished and that big cultural conglomerates be “cut into many pieces.” A “no copyright” system would avoid heavy investments in production of books, music or movies and offer an open space for diversity for artists not in the mainstream as no corporations would have the market power to push an artist out of the public eye, he said.

This would normalise the market, which would not be dominated by stars, Smiers said, and allow the public domain, which “has been privatised on a huge scale,” to be available again. People would then “become active citizens instead of just being consumers of artistic expression.”

Participation in cultural life cannot exist if people are excluded from the sources of cultural expression and communication, he said, adding, “the copyright protection nearly does not guarantee a substantial remuneration to most artists, so the system of copyright does not serve the material interests of the huge majority of artists.”

CESCR Chairperson Philippe Texier said that although a reform of IP rights might be necessary, he did not see how the whole system of copyright could be abolished.

A participant said the right to create and protect one’s creation are supported by Article 15 (1.c) of the Covenant, which recognises the right for everyone “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”. That argument is often debated by human rights advocates who consider that intellectual property rights are not automatically human rights.

Dalindyebo Shabalala of the Center for International Environmental Law said from the audience that the concept of creation and the concept of copyrights were very different. Taking this into consideration would affect the scope of the interpretation of the use of those rights. It is important that the committee makes the distinction, he said.

Copyrights can impede access to culture, said Caroline Dommen of 3D -> Trade – Human Rights – Equitable Economy. For example, some text books are not available in some African languages. The owner of the copyright who is not interested in translating those books for economic reasons will still not release the rights for somebody else to translate them. “This has a serious impact on access to culture,” she said.

Later in the discussion, according to a CESCR release, Dommen said it is essential for the committee to address threats to cultural rights, such as pejorative provisions in free trade agreements or biopiracy, the misappropriation of genetic resources and traditional knowledge, which are not fully protected by the IP system. In addition, she said, the way policies are made could affect the right to culture as, for instance, technological protection mechanisms used to control access to copyrighted material limit access to the digital content.

Catherine Saez may be reached at csaez@ip-watch.ch.

Juliette Ancelle contributed to this report.