Copyright and Human Rights: The Quest for a Fair Balance

Mahalwar, Vandana

doi:10.1007/978-981-10-3984-3_7

Vandana Mahalwar³

1807 Accesses
1 Citations

Abstract

Human Rights and copyright are two distinct and contrary arenas of law, which intersect each other at various points. Copyright is regarded as a means of incentivizing the creation of new works and as a source of dissemination of work. While, on the other hand, the human rights framework of intellectual property in the UDHR and ICESCR aims to offer individuals, the well-merited protection of their moral and material interests in their intellectual creations. Article 27(2) of the UDHR recognizes everyone’s right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Dichotomy of rights in Article 27 portrays internal conflict between access to benefits of arts and scientific advancements and moral and material interests. Article 15(1)(c) of the ICESCR also requires each state party of the Covenant to recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production. There are two distinct approaches to the copyright-human rights interface. The first approach views the copyright and human rights in fundamental conflict with each other, while the second approach considers both to be compatible with each other but still striving to trade-off between access and incentives. This chapter explores the internal and external clashes between copyright and human rights and also addresses the challenges in giving a human rights framework to copyright.

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Notes

1.
471 US 539 (1985).
2.
347 U.S. 201(1954).
3.
Gendreau 2004.
4.
[2001] 4 All ER 666.
5.
Id., para 30.
6.
Adopted on December 10, 1948.
7.
Nickel 1987.
8.
Eide et al. 1992.
9.
Morsink 1999.
10.
Helfer and Austin 2011.
11.
Chapman 2001.
12.
Supra note 10 at 224.
13.
Id. at 184.
14.
Supra note 9 at 218.
15.
Ibid.
16.
Id, at 219–220.
17.
Foster 2015.
18.
Société Roy Export Company Establishment et Charlie Chaplin v. Société Les Films Roger Richebé, 28 R.I.D.A. 133 (1960).
19.
Supra note 10 at 178.
20.
Yu 2006–2007; supra note 9 at 13. Johannes Morsink stated:

Most of the delegations felt that the phrase international bill of rights meant no less than a covenant, while the two superpowers, the U.S. (most of the time and the USSR (all the time), insisted that all the Council had meant was for them to draw up a declaration or manifesto of principles without any machinery of implementation attached to it.
21.
Id. at 15.
22.
Ibid. Danish delegate Max Sorensen expressed,

It would clearly be undesirable merely to transpose the relevant sections from the Universal Declaration to the draft Covenant, for to do so would weaken the authority of the former, and lead to unwarranted conclusions about the significance of those of its provisions which were not reiterated in the latter.

Also, Eleanor Roosevelt, the US delegate while highlighting the fundamental difference between two documents stated,

The [Declaration] consisted of a statement of standard which countries were asked to achieve…. But…a covenant was a very different kind of document, since it must be capable of legal enforcement. The task of drafting such an instrument was wholly unlike that of setting out hopes and aspirations relating to the rights and freedoms of people.
23.
Supra note at 1062.
24.
Ibid. Maria Green stated:

From the beginning, there seems to have been little dissension over the notion of including a right to benefit from cultural and scientific advances.

Jacques Havet, an UNESCO official noted:

The right of everyone to enjoy his share of the benefits of science was to a great extent the determining factor for the exercise by mankind as a whole of many other rights…. Enjoyment of the benefits of scientific progress implied the dissemination of basic scientific knowledge, especially knowledge best calculated to enlighten men’s minds and combat prejudices, coordinated efforts on the part of States, in conjunction with the competent specialized agencies, to raise standards of living, and a wider dissemination of culture through the processes and apparatus created by science.
25.
Id. at 1063.
26.
Supra note 17 at 347.
27.
Id. at 348.
28.
Universal Copyright Convention (adopted on Sept. 6, 1952); supra note 20 at 1063–1064.
As Roosevelt stated:

In her delegation’s opinion the subject of copyright should not be dealt with in the Covenant, because it was already under study by UNESCO which… was engaged on the collation of copyright laws with the object of building up a corpus of doctrine and in due course drafting a convention. Until all the complexities of that subject had been exhaustively studied, it would be impossible to lay down a general principle concerning it for inclusion in the Covenant.
29.
Supra note 17 at 348.
30.
The French delegation expressed:

The draft covenant included provisions for the protection of the property and emoluments of professional workers and should therefore be completed by a provision for the protection of the moral and material interests resulting from scientific, literary or artistic production…. It was not a matter only of material rights; the scientist and artist had a moral right to the protection of his work, for example against plagiarism, theft, mutilation and unwarranted use (at page 1064, reconceptualising).
31.
Supra note 20 at 1064.
32.
Id. at 1065.
33.
Ibid.
34.
Supra note 10 at 178.
35.
Maria Green, International Anti-Poverty Law Centre., “ Drafting History of the Article 15(1)(c) of the International Covenant,” para 34, U.N. Doc. E/C.12/2000/15 (Oct. 9, 2000).
As Green noted,

The only reference to that passage was by D’Souza, the Indian representative, who mentioned that ‘undoubtedly scientific discoveries should benefit not only all individuals, but also nations, regardless of their degree of development.
36.
Supra note 20 at 1066; supra note 35, para 35.
Tejera, a Uruguay delegate observed,

[A] reference to authors’ copyright was imperative. For lack of international protection, literary and scientific works, for example, were frequently pirated by foreign countries which paid no royalties to the authors.
37.
Ibid. Moreover, Tejera stated that

the right of the author and the right of the public were not opposed to but complemented each other.
38.
Supra note 20 at 1067.
39.
Ibid. The major reason for the same can be Universal Copyright Convention, which was entered into effect on September 16, 1955.
40.
Berne Convention for the Protection of Artistic and Literary Works (adopted on September 9, 1886).
41.
Bogsch 1972.
42.
Universal Copyright Convention, Paris Text, 1971, Article XVII(1) reads as:

The Convention shall not in any way affect the provisions of the Berne Convention for the Protection of Literary and Artistic Works or membership in the Union created by the Convention.
43.
Supra note 20 at 1067.
44.
Supra note 35, para 37.
45.
Id., para 42. The Indonesian delegation expressed the concern that

the matter could not be treated adequately in a short provision and that authors’ rights had to be considered in the light of the claims of the public in all countries.
46.
Supra note 17 at 349.
47.
Supra note 10 at 188.
48.
Ibid.
49.
Sub-Commission on Human Rights Resolution 2000/7, E/CN.4/Sub.2/2000/7, para 2, August 17, 2000 General Comment, para 2; The Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to benefit from Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author (Article 15(1)(c)), U.N. Doc. E/C.12/GC/17, January 12, 2006, available at: http://hrlibrary.umn.edu/gencomm/escgencom17.html ( last visited on March 23, 2016).
50.
Ibid.
51.
Supra note 10 at 196; supra note 17 at 350.
52.
Supra note 49, para 13.
53.
Berne Convention for Protection of Literary and Artistic Works, 1883, Article 6bis reads as:
1. (1)
  Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
2. (2)
  The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
3. (3)
  The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
54.
Yu 2009.
55.
Supra note 17 at 351.
56.
Helfer 2003.
57.
Supra note 40, Article 9.
58.
Helfer 1998.
59.
The main proponent of the exception contained in Article 9.1 of TRIPs Agreement was the US.
60.
The Agreement on Trade-Related Aspects of Intellectual Property Rights, adopted on April 15, 1994 (hereinafter TRIPs), Article 10.1.
61.
The subject matter of protection under Article 10.2 of TRIPs Agreement is ‘compilation of data or other material’.
62.
TRIPs, Article 9.2.
63.
Id., Article 13.
64.
Correa 2007.
65.
Gervais 2015.
66.
Geiger et al. 2014.
67.
Id., at 584.
68.
Ibid.
69.
Vienna Convention on the Law of Treaties, concluded on May 23, 1969, Article 31.
70.
Supra note 66 at 598.
71.
See the submission to the Council of TRIPs by the African Group, Barbados, Bolivia, Brazil, Dominion Republic, Ecuador, Honduras, India, Indonesia, Jamaica, Pakistan, Philippines, Peru, Sri Lanka, Thailand, and Venezuela, IP/C/W/296, 19 June 2001.
72.
Ruse-Khan 2011.
73.
Supra note 66 at 598–599.
74.
Supra note 64 at 103.
75.
Torremans 2007.
76.
Supra note 56 at 47–48.
77.
Ibid.
78.
Ibid.
79.
Ibid.
80.
Minero 2015.
81.
Id. at 177.
82.
Universal Declaration of Human Rights, adopted on December 10, 1948, Article 26 reads as:
1. (1)
  Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. (2)
  Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. (3)
  Parents have a prior right to choose the kind of education that shall be given to their children.
83.
1. (1)
  Id., Article 27 reads as: (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.
2. (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.
84.
International Covenant on Economic, Social and Cultural Rights, adopted on December 16, 1966, Article 13 reads as:
1. 1.
  The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. 2.
  The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
  1. (a)
    Primary education shall be compulsory and available free to all;
  2. (b)
    Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
  3. (c)
    Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
  4. (d)
    Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
  5. (e)
    The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
3. 3.
  The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
4. 4.
  No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
85.
Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.
86.
Id., Article 15(1)(c) reads as: The States Parties to the present Covenant recognize the right of everyone:
(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.
87.
TRIPs, Article 18.1 reads as:
Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
88.
Sub Commission on the Promotion and Protection of Human Rights, ‘The impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on human rights’, E/CN.4/Sub.2/2001/13, June 2001.
89.
Gervais 2008.
90.
Supra note 64 at 118.
91.
Berne Convention, Article 6bis reads as:
1. (1)
  Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
2. (2)
  The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
3. (3)
  The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
92.
Supra note 84 at p. 14.
93.
Supra note 11 at 5.
94.
Torremans 2015.
95.
Supra note 20 at 1096.
96.
The Right of 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, Article 15(1)(c)) para 4, U.N.Doc.E/C12/GC/17 (Jan. 12, 2006).
97.
Berne Convention, Article 11bis, 13.
98.
Supra note 66 at 596.
99.
Supra note 10 at 1095.
100.
CESCR, General Comment No. 3: The Nature of States Parties Obligations (Article 2, para 1), 10, U.N. Doc. E/1991/23 (Dec. 14, 1990).
101.
Supra note 11 at 314–315.
102.
Ibid.
103.
Helfer 2007.
104.
Progressive Realisation and Non-regression, ESCR-Net, available at: https://www.escr-net.org/resources/progressive-realisation-and-non-regression (last visited on March 27, 2016).
105.
Plaintiffs brought this suit on September 20, 2005.
106.
Supra note 105.
107.
Id. at 13.
108.
Ibid.

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Vandana Mahalwar

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Mahalwar, V. (2017). Copyright and Human Rights: The Quest for a Fair Balance. In: Sinha, M., Mahalwar, V. (eds) Copyright Law in the Digital World. Springer, Singapore. https://doi.org/10.1007/978-981-10-3984-3_7

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