No, Copyright Is Not A Human Right

from the dig-a-little-deeper dept

We recently discussed the common fallacy that "copyright is in the Constitution", but that's only one example of copyright defenders misrepresenting a document to support their cause. Another favorite, often invoked by folks like Rob Levine and David Lowery, is the UN's Universal Declaration of Human Rights—a relatively toothless document in the US (compared to the Constitution) but one that feels good to have on your side.

But here's the thing: it doesn't say what copyright supporters think it does. Not even close. Not only are they focusing on only one half of the declaration's relevant article, and ignoring additional detail from another UN declaration that is meant to go hand-in-hand with the first... even the tiny part they focus doesn't match their position. Let's take a look.

The line in the declaration that establishes a right to some sort of intellectual property is Article 27, Section 2:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Right off the bat, we see a problem: moral and material rights. The US, explicitly and intentionally (with some very minor exceptions) does not protect the moral rights of creators—the copyright system is based almost exclusively around economic rights. So when copyright supporters in America cite the Declaration of Human Rights, they are in fact pointing to a clause that the US directly violates.

Now, maybe that doesn't sound like much—after all, at least US copyright is in line with the "material rights" part. But is it? That's where we need to look at the bigger picture of international rights. That's something that copyright supporters never seem to do, and it's pretty obvious why. As mentioned, the line they cite is the second section of the relevant article—now lets have a look at Section 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.

Now it's starting to look like the Human Rights Commission intended for there to be a little bit more balance in Article 27—and that they had their priorities straight. Sections 1 and 2, taken together, would seem to suggest (at the very least) that copyright should be focused primarily on commercial endeavours (and that patents are a pretty questionable concept all around).

Is that a subjective interpretation? By itself, yes—but don't take my word for it. See, there's something else that copyright supporters are leaving out of the picture: the Universal Declaration of Human Rights is just one of three documents that, together, form the International Bill of Human Rights (nobody ever accused the UN of efficiency). Another, the International Covenant on Economic, Social and Cultural Rights, provides considerable additional detail on the question of creators' rights. Let's take a look at Article 15 of that document:

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(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.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

That's an awful lot of caveats and addenda, all focused on ensuring that the copyright reins aren't too tight. In fact it seems like the text is specifically trying to distance itself from traditional intellectual property regimes. This time, you definitely don't have to take my word for it, because here's where we get to the really damning evidence: the general comment (pdf) on the document from the Economic and Social Council, which attempts to further explain the intention of all the rights. Here are some choice quotes:

Whereas the human right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living, intellectual property regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.

It is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c).

...

The right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions seeks to encourage the active contribution of creators to the arts and sciences and to the progress of society as a whole. As such, it is intrinsically linked to the other rights recognized in article 15 of the Covenant, i.e. the right to take part in cultural life (art. 15, para. 1 (a)), the right to enjoy the benefits of scientific progress and its applications (art. 15, para. 1 (b)), and the freedom indispensable for scientific research and creative activity (art. 15, para. 3).

...

Moreover, the realization of article 15, paragraph 1 (c), is dependent on the enjoyment of other human rights guaranteed in the International Bill of Human Rights and other international and regional instruments, such as the right to own property alone as well as in association with others, the freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds, the right to the full development of the human personality, and rights of cultural participation, including cultural rights of specific groups.

Starting to paint a different picture, no? The comment goes on to offer some specifics, underlining how thoroughly different this human right is from intellectual property rights. For one thing, it's not transferable:

The Committee considers that only the “author”, namely the creator, whether man or woman, individual or group of individuals, of scientific, literary or artistic productions, such as, inter alia, writers and artists, can be the beneficiary of the protection of article 15, paragraph 1 (c). This follows from the words “everyone”, “he” and “author”, which indicate that the drafters of that article seemed to have believed authors of scientific, literary or artistic productions to be natural persons, without at that time realizing that they could also be groups of individuals. Under the existing international treaty protection regimes, legal entities are included among the holders of intellectual property rights. However, as noted above, their entitlements, because of their different nature, are not protected at the level of human rights.

For another, it calls for a bunch of specific moral rights that do not and have never existed in the US:

In line with the drafting history of article 27, paragraph 2, of the Universal Declaration of Human Rights and article 15, paragraph 1 (c), of the Covenant, the Committee considers that “moral interests” in article 15, paragraph 1 (c), include the right of authors to be recognized as the creators of their scientific, literary and artistic productions and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, such productions, which would be prejudicial to their honour and reputation

And even when it comes to material rights, special mention is given to the fact that this doesn't have to resemble traditional copyright, although it can:

The term of protection of material interests under article 15, paragraph 1 (c), need not extend over the entire lifespan of an author. Rather, the purpose of enabling authors to enjoy an adequate standard of living can also be achieved through one-time payments or by vesting an author, for a limited period of time, with the exclusive right to exploit his scientific, literary or artistic production

Now, in addition to all this, the general comment does include plenty of lines that make room for traditional intellectual property laws—it's not as though the whole thing reads as a total condemnation of copyright. However, this closer look at the contours of international human rights makes it abundantly clear that it was not intended as an endorsement of copyright either. Every time something that sounds like US copyright is mentioned, it's because it's being permitted but not required—and often written in such a way as to suggest that it's not recommended either. Moreover, it's impossible to avoid the fact that the US does not recognize the moral rights called for in the declaration—which I actually think is probably a good thing, but can't just be ignored by those who want to use the declaration as ammo for defending copyright.

I think the question of whether or not there is an innate human right to control one's creative output, in either the moral or material sense or both, is a fascinating and important topic with lots of room for debate. But that has very little to do with the current economic regime of copyright—least of all in the US, since many other countries do wrap moral rights into copyright law. Apologies to the IP crowd, but neither the Founding Fathers nor the United Nations support you the way you think they do—so you're going to have to stop falsely appealing to their authority and come up with some new arguments.

Filed Under: copyright, human rights


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  1. icon
    Karl (profile), 28 Oct 2012 @ 7:53pm

    Re: OK, I lied - another comment

    Techdirt has repeatedly asked readers whether they want to support companies whose actions they find objectionable.

    There are a few differences here.

    1. Mike has usually advocated for consumers not to buy products that are against the consumers' best interests, such as games with always-on DRM. He has not, to my knowledge, asked anyone to contact AdSense, and ask them to stop carrying Ubisoft ads.

    2. Mike has not misrepresented what people say in order to get them to boycott anything. Look at what you tweeted. Techdirt does not "trash creators" in general, nor "advocate against their rights," but you informally called for a boycott of Techdirt's advertisers based on those misrepresentations.

    Last, while some of what I've said about Mike has been impolite - and I'm not proud of my tone - Mike himself can be pretty rude to those who disagree with him.

    Being rude is one thing. Misrepresenting his positions is another. Mike certainly can take a caustic tone, but he takes a caustic tone based on what you actually say. You don't do that.

    Leaving aside Techdirt altogether, you've clearly and continuously misrepresented everyone in the "tech industry" and the free culture movement. Some choice quotes:
    Google really brought out the Astroturf for those bills [SOPA and PIPA]. They really just whipped people into a frenzy about stuff thatís not in the bill. I donít think that people who hate bills favor piracy. There are a lot of very smart people who make smart points about why bills are flawed or bad. At the same time, they have a lot of people whipped into frenzy about how this is end of free speech online, and a lot of those people are funded by Google -- and thatís bullshit.

    - http://www.reuters.com/article/2011/12/18/idUS411011457520111218
    When I was researching my book, I was shocked to find out that the same people who argued music and video should be free were getting money from Google.

    The Internet community is always in a complete lather. They operate on one setting, hysterical. I've never seen them try to look at the issue from the other side.

    This debate isn't about the consumer. It's about big money versus big money. Look who is going to Washington to object; it's all venture capitalists. They are wigged out about these bills. They want to preserve their right to build a business on someone else's back.
    - http://www.adweek.com/news/technology/internet-community-always-complete-lather-136310

    It's just you have [Harvard Law Professor] Lawrence Lessig out there saying that you should be able to do all this stuff for free and it's an affront to free speech.

    There is this sense that so far all the books have been about giving it away for free and seeing what happens.

    When you sign a record company deal, it's a contractual relationship. With websites you don't get to choose. They didn't ask your permission. You don't vote. They're making money on what you're doing without compensating you.
    - http://www.spin.com/articles/qa-free-ride-author-rob-levine-why-free-downloading-actually-costly

    YouTubeís offer to the media business could be summarized, in geek terminology, as Ďall your video are belong to usí Ė so you might as well take what we give you.

    The obvious problem is this: How much can you trust a company that deliberately attempts to profit from the work of others without providing any compensation?
    - http://freeridethebook.wordpress.com/2012/01/06/to-live-outside-the-law-you-must-be-honest/

    There 's more of this floating around the net. It's utterly bogus. Everything I've put in italics is simply not true, and misrepresents the opinions of everyone involved.

    Admittedly, that's not nearly as bad as outright liars like the people on Trichordist, but it's still pretty bad.

    The irony is that you and Mike agree with each other on many of the solutions to the problems of artists getting paid. So do you and Google, and you and Lessig. If you weren't so busy attacking them, and actually listened to what they say, you might actually realize that you have more in common with the "free riders" than you do with the media industry.

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