Intellectual Property Law Under The Prism Of The Right To Culture

STRASBOURG, FRANCE – Although the right to science and culture has been enshrined in several international treaties, their exact implications in the intellectual property field have remained vague.

A recent report entitled “copyright policy and the right to science and culture,” presented at the 28^th session of the Human Right Council in March 2015 by UN Special Rapporteur Farida Shaheed shed some light on this debate, however. Her report then attracted attention in the European arena in the context of the ongoing copyright reform. In this context, an international group of experts recently commented on it at the University of Strasbourg Centre for International Intellectual Property Studies (CEIPI).

In the report, the right to science and culture refers to Article 27 of the Universal Declaration of Human Rights (UDHR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

On 11 May, CEIPI held a roundtable on “Intellectual Property And Access To Science And Culture: Convergence Or Conflict?” as part of its lecture series entitled, “Rethinking Intellectual Property, Fundamental Questions And New Perspectives.” CEIPI Director Christophe Geiger moderated the different sessions.

Recent UN Report on IP and Access to Culture

Lea Shaver, associate professor at Indiana University (US), presented a panel entitled, “The Recent Report of the UN Special Rapporteur on IP and Access to Culture.” Closely involved in the report as expert leader, she emphasised its outlines.

She said the study contributes to “a promising framework for reconciliation” between intellectual property and human rights. It emphasises that both systems share the same commitment for balancing protection and access. In this context, she said, “a serious dialogue with a human rights perspective can actually help the copyright regime to achieve that better.”

The UN report explicitly rejects the claim that intellectual property rights are human rights. “This equation is a false and misleading,” said Shaver. The statement that IP is not a human right “moves the things forward” and enables “a more sophisticated conversation on intellectual property from a right to science and culture perspective,” she said.

The report clearly distinguishes that “some elements of intellectual property protection are indeed required – or at least strongly encouraged – by reference to the right to science and culture, but other elements of contemporary intellectual property law … may … be incompatible with the right to science and culture.”

The right to science and culture requires, as per the report, “protection of authorship as well as opportunities for participating in cultural life,” what Shaver called respectively the “protective elements” and “participating elements” of this right.

Concerning the protection of authorship, it is not a mere synonym for copyright, but rather a human rights standard against which copyright law should be judged, she said. This protection of authorship encompasses authors’ moral and material interests.

Moral rights, which are familiar in copyright law, do not fully capture the world of moral interests from a human rights perspective, she said. Additional or stronger moral interests in creative, artistic and academic freedom, for instance, should be discerned.

In addition, “the human right to protection of authorship requires that copyright policy … ensure that authors benefit materially,” said the report. On this ground, the experts rejected the assumption that stronger copyright protection advances the authors’ material interests and drew an important distinction between human authors and corporate rights holders.

Corporate rights holders play an essential role in the cultural economy, but “their economic interests do not enjoy the status of human rights,” she said. As they are typically better positioned to influence copyright debates as well as contractual negotiations with authors, some mechanisms are suggested to tackle this imbalance of bargaining power, namely, copyright reversion, droit de suite and statutory licensing, she said.

Along with that, the right to science and culture includes a right of individuals to actively participate in cultural and scientific life. In the experts’ eyes, exceptions and limitations in copyright appear to be the best method to achieve this goal.

Regrettably, the international approach of copyright treaties has considered these exceptions and limitations as an “optional afterthought instead of a robust important mandatory part of the copyright bargain,” said Shaver.

They are essential tools for accomplishing the right to science and culture’s objectives by: (1) assuring artistic livelihoods (2) empowering new creativity (3) expanding educational opportunities (4) expanding space for non-commercial culture (5) and promoting inclusion and access to cultural works, said the report.

The use of open licensing, such as Creative Commons, is equally welcomed by the report.

In Shaver’s view, both strategies – exceptions and limitations as well as open licensing – are complementary. While the former reforms copyright from the inside to promote human rights, the latter is beyond copyright, developing creative solutions to simultaneously support creativity and broader access, she said.

The report included a number of concrete recommendations to members of the World Intellectual Property Organization.

Copyright as Access Rights

For Christophe Geiger, director of CEIPI, taking seriously UDHR Article 27 would mean “that access to culture should be at least one goal – if not the ultimate goal of copyright protection,” he said, and thus moving from “a right to hinder access” toward “a right to grant access.”

He clarified that claiming access “does not necessarily mean access for free,” but rather “under fair conditions.”

Similar reasoning has been uphold by the European Court of Justice (ECJ), in the landmark Magill case, deciding that a refusal to licence an intellectual property right could in exceptional circumstances be regarded as an abuse of dominant position. But, to give such a fundamental ruling, the ECJ took a decade, and “that is not how creativity function,” he said, meaning the court process is too slow.

Discussing copyright as an access right is also becoming urgent, said Geiger. This is especially the case given recent striking statistics of the European Observatory revealing that 40 per cent of EU citizens perceive copyright as a mechanism to the advantage of big corporations and famous artists. Even more frightening, he added, 50 per cent of people from 15 to 24 years old consider illegal access to copyright as an act of protest.

It is evident that ensuring a more positive copyright approach will coincide with international and European human rights foundations, as well as with the philosophical and historical grounds of copyright from the 18th century, he said.

In terms of practical consequences, Geiger highlighted four points that could occur if future copyright was read under the prism of an access right.

Firstly, instead of perceiving any extension of copyright law as a good thing for creativity and requiring strong justification for any limitations and exceptions, the situation could be reversed, he said. Policymakers would have then to demonstrate the benefits deriving from new copyright expansion. In other words, “switching the burden of proof,” he said.

Secondly, a range of duties for right holders could be adopted. Among the examples given by Geiger, copyright holders could disseminate and exploit their works as much as possible, and if not, a licence would be granted to third party, echoing the Magill’s reasoning and the revocation mechanism applied in trademark law.

Thirdly, subjective rights enforceable before courts could be granted to users. Remarkably, such terminology – users’ right – has already been utilised by the ECJ in one of its latest decisions: UPC Telekabel v. Constantin Film. For Geiger, “we are almost there.”

Fourth, reshaping copyright law from a more fundamental perspective and “looking at exclusive rights in a bit more restrictive sense and the limitations in a more flexible sense,” he said with a flavour of provocation.

Reverse Three Step Test?

The well-known “three step test” (hurdles for granting copyright exceptions) could, for instance, be turned around in a way that it could grant copyright protection rather than limiting it. Only creative works fulfilling the criteria of this “up front three step test” could be worth protecting by copyright. For other works, as stated by Jerome Reichman, professor at Duke University Law School, “there are sufficient others means of protection,” Geiger said.

In addition, “we definitively need to open up a little bit the type of exceptions and limitations to allow free space for more creativity,” Geiger said.

While that idea may be more thinkable from a common law perspective, studies have shown today that an economic value is attached to those limitations and exceptions and that creative business models have successfully been build on the basis of those provisions.

On the remuneration aspect, the copyright system crucially must move “into something more measurable,” because according to a first recent empirical study, “very little comes to creators’ pockets from copyright,” he said.

Therefore, if statutory licences prove to be financially more favourable than exclusive rights, Geiger suggested their increase in the European landscape because “authors like everyone need to pay their rent at the end of the month,” he said.

Joséphine De Ruyck was an intern for Intellectual Property Watch and for CEIPI.

 

Image Credits: CEIPI