The United Nations Human Rights Council is holding its 28th session this month, and one item on the agenda is discussion about a report from Farida Shaheed, who is a “Special Rapporteur” in the area of “cultural rights.” Ms. Shaheed is a well-known Pakistani sociologist and human rights activist. Her report is a remarkable document in many ways, with a lot of things to like for those who are concerned about the overreach of copyright laws. There are also some points that are troubling, although, on balance, I would love to see this report get attention and action from the U.N.
In some sense, the most remarkable thing about this report is its frank recognition that intellectual property laws are in tension with the fundamental human right of access to science and culture. In only its third paragraph, the report reminds us that since at least 2005, the World Intellectual Property Organization, a U.N. agency, has been mandated (whether effectively or not) to give “renewed attention to alternative policy approaches to promote innovation and creativity without the social costs of privatization.” In short, the WIPO is charged, whether effectively or not, to find ways to facilitate open access to science and culture. This charge is made explicit in the recommendations, where the Special Rapporteur directly suggests that “[p]ublic and private universities and public research agencies should adopt policies to promote open access to published research, materials, and data on an open and equitable basis, especially through the adoption of Creative Commons licenses” (para. 113).
When librarians and other open access advocates discuss OA policies with their faculties, perhaps we should recognize that there is a compelling argument to be made that this is not just a “what’s best for academia and for my interests” issue, but a true human rights issue. Ms. Shaheed’s report makes this case in a concise and compelling way. And this point also reminds us of why open access that is achieved simply by paying the commercial publishers to release articles is not a solution, because it does not really promote equitable access. The fees charged are too high for many authors, they are not administered in a transparent way, and, frankly, some of the publishers cannot be trusted to fulfill their end of the bargain. Barbara Fister discussed some of these problems in more detail in her recent Inside Higher Ed blog post, called “New Predatory Publishing in Old Bottles.” If we take open access seriously as a step toward a more democratic and equitable culture, we must embrace a wider variety of “flavors” of OA, and not assume that the “usual suspects” can do it for us.
To return to a reading of the Human Rights Council report, there are strong endorsements of the idea that cultural and scientific development depends on restraining the reach of IP protections. The section on “Copyright policy and cultural participation” is structured around three themes that all begin with “promoting cultural participation through…” and then go on to discuss copyright limitations and exceptions, international cooperation, and open licensing. Here are some specific recommendations that I found very encouraging:
- In regard to negotiations that are already underway, the report endorses ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Disabled, or Otherwise Print Disabled. On the other hand, Ms. Shaheed expresses concern (para 19) about the Trans-Pacific Partnership Agreement that is currently being negotiated in secret, which is the problem that the report focuses on, calling for all such multinational agreements to be discussed in a transparent way (para 92). Since the TPP is often defended with the claim that it will benefit developing countries, it is fascinating to see it cited as an example of a “democratic deficit in international policy making.” From a different article, this editorial about the TPP by a U.S. Senator raises the same type of concern, and together they make a strong case against the agreement.
- In paragraph 22 the report discusses the potential that a pervasive licensing environment can inhibit artistic self-expression and slow cultural development.
- The report calls for the adoption of international treaties on copyright limitations and exceptions for libraries and education. Given the current climate in the WIPO, this seems like a long shot, but is valuable in part because it calls attention to that climate, which is dominated by representatives of commercial interests (including, unfortunately, the U.S. Trade Representative).
- On the issue of copyright limitations and exceptions, the report specifically points to fair use as a tool for allowing a more “comprehensive and adaptable” approach to unlicensed uses (para 73). The report notes that most countries take the route of adopting exceptions for specific types of use, which provides more certainty, but adds that that approach may be inadequate in the current environment. In general the report calls for a flexible approach to “uncompensated use of copyrighted works , in particular in contexts of income disparity, non-profit efforts, or under-capitalized artists” (para 106). It specifically asserts, in this regard, that member states should not take a rigid approach to the so-called “three-step test” for copyright exceptions that is found in the Berne Convention (para 104), which is often used as a weapon by commercial interests against broadly applicable exceptions.
- One of the recommendations I like best in this report, found in paragraph 107, is that states should enact laws that would prevent copyright limitations and exceptions from being overruled by contractual provisions, and protect such exceptions from excessive technological interference as well. The UK has recently adopted the contractual part of this idea, stating that certain uses that are allowed by the law cannot be prohibited by contracts. As I have said before, this is an idea we need to incorporate into U.S. copyright law, and it is good to see the U.N. special rapporteur endorse it so firmly.
There is an overall emphasis in the report that focuses on copyright as an authors’ right, and it is this focus that gives me some ambiguous feelings about the document. On the one hand, I agree that a focus on authors and supporting authorship will help re-balance our approach to copyright. Where we have most often gone wrong in this area is when we have allowed copyright discussions to focus on supporting the business models of intermediary organizations, regardless of whether or not those models really helped incentivize authors and creators. Throughout its history, copyright has been called an authors’ right and treated like a publishers’ privilege. Re-focusing on authors is part of restoring copyright to its proper function, and makes sense in a document about human rights. And yet, it is also true that too much stress on author rights can also become unbalanced. Copyright cannot benefit society unless it weighs the rights of both users and creators, especially since the former often aspire to become the latter. Authorial control is an important part of the creative incentive, but it can easily go too far.
One troublesome area where this is a real danger is protection for “traditional knowledge and traditional cultural expressions” — the cultural creations of indigenous peoples. This is an area where there have certainly been abuses, and it is not surprising to find a concern over TK and TCE, as the international community abbreviates them, in a report about IP and human rights. Unfortunately, protection for these cultural products raises as many problems as it does solutions. Should there be a public domain for TCEs? If not, why not? And who is the legitimate rights holder in traditional knowledge? The national government? In an article back in 2011, David Hansen explored some of these issues and found real incompatibility between traditional knowledge protections and the values that animate IP law.
So my final attitude toward this report is mixed, but still strongly positive. I think it recommends many of the right steps toward restoring copyright and other IP rights to their proper scope and function. It rightly places the focus on authors and on economic and cultural development. It reminds us that all high-level copyright conversations should have a human rights perspective. Where I have concerns, I see a chance for continued conversation. But at least those conversations would take place with the proper grounding, if the report is taken as seriously as it deserves.