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), 30 Oct 2012 @ 2:11am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: OK, I lied - another comment

    Google certainly felt it had a relationship with you - that's why it added your work for the CCIA to its list of disclosures. That relationship involved an intermediary, but it's still a relationship - that's why it was disclosed.

    Good Lord, this again?

    For the curious, here's Mike's sarcastically-titled post about the subject: Apparently I'm A Google Shill And I Didn't Even Know It. Here's the passage you're referring to:
    [From the Google filing:] The CCIA has commissioned studies by Mike Masnick, CEO of Floor64. See Mr. Masnick has commented on the case on the TechDirt website and on his personal account. See Ex. X (available at google-oracle-case.shtml and at did-not-infringe-on-oracle-patents).

    And, yes, CCIA has commissioned a study by my company (Floor64) which I co-authored. And that's, uh, public knowledge. Here's my post back in January announcing the Sky is Rising report, in which it says, upfront, that it was sponsored by CCIA.

    Mike was clearly using "commissioned" only because the Google report used that word, and he used it as a synonym for "sponsored." Here's the language from Mike's announcement of the study, The Sky Is Rising: The Entertainment Industry Is Large & Growing... Not Shrinking:
    Today, in Cannes, at the Midem conference, I did a presentation that was something of a follow up to the presentation I did here three years ago, about how Trent Reznor's experiments represented the future of music business models. This time, the presentation coincided with the release of a new research paper that we've spent the past few months working on, sponsored by CCIA and Engine Advocacy, in which we did a thorough look at the true state of the entertainment industry.

    This does not even hint at the suggestion that Techdirt was "working for" the CCIA. Anyone who knows anything about sponsorship deals knows this.

    But if it wasn't clear, here's Mike's take again:
    I'm not sure how that has anything to do with Google. Google is a CCIA member, as are a bunch of other companies. And, honestly, if you'd asked me yesterday, I would have said that I thought Oracle was a CCIA member too, because it's an organization that represents a bunch of top tech companies, including Microsoft, eBay, Sprint, Facebook, AMD, Fujitsu, Dish Networks and more. However, it appears that Oracle is not a CCIA member, though I only learned this today from the filing, which also notes that Oracle and Sun used to be CCIA members. So, I'm not sure what any of that says about anything.

    And, of course, if the point of this exercise is to uncover "shills" who are really speaking on behalf of companies without disclosing it, once again this argument falls down. My position on issues related to copyright and patents has been pretty damn consistent since before Google existed. And that continues up until today. I will regularly call out Google for patent and copyright behavior that I believe is bad. And that's because I say what I think. The editorial content of this site has never been for sale, nor will it ever be. Because the only way I survive in this business is with my reputation.

    This is backed up by Google's filing:
    In response to the Court's August 20, 2012 Order to Supplement (Dkt. 1238), Google again states that neither it nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case. Pursuant to the Court's clarifications in the Order to Supplement, the required disclosure does not include advertising revenue, disclosed experts, or gifts to universities. Id. at 1-2. It does, however, include (a) "all commenters known by Google to have received payments as consultants, contractors, vendors, or employees"; and (b) employee-commenters at organizations who receive money from Google. Id.

    With that in mind, Google provides the following supplemental disclosure. [...]

    Besides the specific individuals listed below, Google is not aware of any other employee-commenters having commented on the litigation. Google did not pay for comments from any of these commenters.

    A. Computer and Communications Industry Association
    Oracle’s falsely suggests that Ed Black of the Computer and Communications Industry Association ("CCIA") was acting under the influence of Google money when he wrote a column stating the position that APIs are not copyrightable. Oracle and its counsel had to have known that CCIA’s position on APIs pre-dated Google’s membership in CCIA—and in fact predated Google’s incorporation in 1998. [...]

    The CCIA has commissioned studies by Mike Masnick, CEO of Floor64. [...the rest is in the quote above]

    The fact that Google uses "commissioned" rather than "sponsored," and "studies" rather than "study" (since the CCIA only sponsored the one study), shows that the connection to Google was so remote, that Google itself didn't know the nature of the relationship between the CCIA and Techdirt. It's also pretty clear that Google was erring on the side of caution, and listed everyone who had ever taken money from the CCIA for any reason and who had also blogged about the case. They did this because Oracle had falsely accused Google of paying for the opinion pieces from the CCIA specifically.

    Also of note is that Techdirt had a closer "relationship" with Oracle than it did with Google. Mike again:
    Separately, because all of this struck me as interesting, I remembered that we did some work with Oracle too! And, just as with what we did with CCIA, it was disclosed publicly at the time. Oracle (along with Intel) sponsored a section of our site, and a series of webinars that we did. And yet, Oracle did not disclose me in their original filing and I don't believe that they filed a new filing here either. Of course, as with CCIA, our relationship with Oracle did not include them having any say in editorial either.

    The whole "Google shill" bullshit is brought up purely as a way to poison the well in any discussion about what Mike or Techdirt has to say. You're not the first one to do it, but you should know better, and you should be ashamed of yourself.

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