On 23 April Article 19 published its Principles on Copyright and Freedom of Expression in the Digital Age. Anne Barron of the LSE Department of Law argues that while the Principles translate international human rights norms into useful arguments against the further erosion of Internet freedom by beefed-up copyrights, they may also pre-empt more radical options for re-thinking the relationship between copyright and communication.
For most of its 300-year history, the modern copyright system’s implications for freedom of expression have escaped critical scrutiny.
That changed with the advent of the Internet as a medium of many-to-many communication in the 1990s. The internet seems to have made the right to impart and receive information and ideas practicable as never before; yet the increasingly bloated copyrights wielded by the information industries seem to many to be largely responsible for crushing this potential. Consequently, ‘Free Speech’ has now become a resonant rallying cry for copyright’s critics.
The industries’ latest strategy – to strengthen and diversify the mechanisms by which copyrights are enforced – has heightened the tension in this area in more ways than one. ‘Graduated response’ regimes such as that provided for by the UK’s Digital Economy Act 2010 and the blocking injunctions such as those recently issued in the UK enlist broadband providers as the content providers’ partners in advancing the enforcement agenda. But lawful communication will inevitably be monitored, and may also be restrained, by ISPs acting under the pressure that powerful rights-owners can exert. Little wonder, then, that thousands took to the streets of Europe last year to protest against ACTA, the new treaty on IP enforcement that urges the spread of these mechanisms; and these demonstrations undoubtedly contributed to ACTA’s wholesale rejection by the European Parliament in July 2012.
Now an initiative led by Article 19 – a London-based NGO taking its name from the free expression clause of the Universal Declaration of Human Rights – has turned the rallying cry into a manifesto. Article 19’s ‘Principles on Copyright and Freedom of Expression in the Digital Age’ purport to translate international human rights norms – particularly those relating to free speech – into a recipe for stemming the ‘alarming expansion of copyright claims’ that has accompanied the rise in Internet use.
Article 19’s Principles
Some of the Principles are difficult to argue against. One is Principle 8, which states that disconnecting people from the Internet would never be a legitimate response to online infringement, because it would inevitably amount to a disproportionate restriction on their freedom of expression. Another is Principle 9, which states that the filtering and removal of allegedly infringing content, and the blocking of websites enabling access to such content, should be strictly controlled.
However, not all of the Principles are self-evident. Anyone who seriously contends that, say, the UK Government will be persuaded to revise the copyright term downwards to the lifetime of the author on the ground that international human rights law demands it (Principle 5) is whistling in the wind. It’s not that the arguments enunciated by the Principles are wrong; it’s that human rights instruments, by their nature, are highly malleable; and the ‘balancing’ of rights that they invariably require leaves plenty of discretion to legislators and judges to decide how to weigh values such as freedom of expression and due process against the property rights of copyright owners.
Are fundamental human rights instruments the right instruments?
It follows that in spite of the certitude with which the Principles are enunciated, international human rights law doesn’t in fact yield knock-down arguments against the power that comes with IP ownership; political battles still have to be fought and won. Moreover, it is questionable whether the human rights regime is the best ground on which to fight these battles. One reason is that the regime could conceivably be invoked to bolster copyright protection rather than to undermine it (Article 17(2) of the EU Charter on Fundamental Rights – insisting that ‘intellectual property shall be protected’ – springs to mind). Ironically, copyright could emerge strengthened, rather than weakened, from the project of reading it through a human rights lens.
A further and more fundamental problem is that human rights discourse can become something of a trap: those who put it to work to achieve practical goals are inevitably obliged to accept its founding assumptions. While these can enable new ways of contesting existing legal arrangements, they can also limit what it is possible to imagine by way of alternatives. In the context of the struggle for copyright reform, the notion that copyright expansion is a human rights issue unsettles the dominant conception that it is only an economic issue: that the only debate worth having is whether bigger copyrights are better for business. Yet taking human rights too seriously also inclines one to accept that expressive freedom and intellectual property are indeed ‘fundamental’ – and opposed – rights, which must somehow be reconciled if legitimate reform is to be achieved.
Article 19 accepts precisely this. It demands only that new limits be imposed on copyright to protect the expressive freedom of users of copyright material, while being content to leave a stripped-down copyright system in place to protect the intellectual property of authors. But are authors not speakers too? Is the flow of information and ideas not served by the existence of legal arrangements that enable authors to earn a living from what they produce? And why assume that these arrangements must take the form of an intellectual property regime, albeit one that is less expansive than that currently in place?
Now, more than ever, creative thinking is called for about creators’ rights
There is only a brief reference in the Article 19 Principles to the interests and needs attaching to authorship. Principle 13.2 states that ‘creators have a legitimate expectation of a legal framework which encourages their ability to seek remuneration for their work and which also respects and promotes the right to freedom of expression’. Principle 13.3 urges States to encourage initiatives such as Creative Commons, ‘whereby creators waive some of their rights in their works’. Nothing is said about how the ‘legitimate expectation’ of payment can be met in a context where authors – some of the most precarious workers around – are being encouraged to ‘waive’ existing rights. No propositions are advanced as to what system of authorial rights might deliver adequate remuneration to authors while also securing what (I have elsewhere argued) is truly fundamental to both the creation and the reception of ideas: namely, the communicative freedom that sustains the public sphere.
This freedom entails responsibilities as well as rights, including especially the responsibility to cultivate one’s own capacities for critical and independent thinking and to respect those capacities in others. Crucially, it does not entail the responsibility to respect others’ intellectual property, or the right to acquire intellectual property for oneself. However, communicative freedom certainly does require to be enabled in material ways, not least by adequate remuneration for authors, and spaces – such as the Internet – in which critical-reflective interaction can freely occur.
In so far as Article 19’s Principles seek to defend Internet freedom against the immediate threats that copyright expansionism poses to it, they are valuable and important. But fresh insights are urgently needed about the legal arrangements that would advance communicative freedom in the richer sense just outlined. These are not emerging from courtrooms or parliaments (or even from the headquarters of human rights NGOs!) so much as from social movements – including especially the hacker movement that gave rise to the free software phenomenon from which Creative Commons itself derives. Hackers are experimenting with new formulations of both freedom and property – re-thinking how both creative autonomy and economic security could be possible for authors in the new economy that the Internet has helped to produce. They are also engaged in imaginative efforts to re-mix trade mark rights, moral rights, ‘copyleft’ licences and informal hacker norms into a new array of authors’ rights that could advance these ideals more effectively than conventional copyrights. The experiments are unfinished and beset by contradictions, but they are arguably more responsive to the exigencies of the ‘digital age’ than the lofty notions enunciated in international human rights law.
I also find these principles somehow problematic, but rather for another reason –perhaps closer to the «whistling in the wind» statement. The main issue I see with them, specially with the overall approach, is that there’s no attempt whatsoever to challenge the disproportionate copyright protection framework while acknowledging its rationale. It’s somehow pretending to impose a human rights discourse, maleable as it is, to establish a start from scratch. And that is both a little unrealistic and presumptuous.
Copyright theory not only underpins long-standing and strong international instruments and regulation, but it’s also based on lines of argument that deserve some attention (property, economy, incentives). In addition, such arguments can be referred back to human rights –as Ms Barron affirms.
Besides the theoretical critique, this can also be problematic in practical terms if we were to use these principles for campaigning purposes. Can we push any realistic copyright policy without some conceptual dialogue? I’m not sure I would use such an approach.
I disagree with the unbalanced picture in the copyright framework as it stands, and while the future should look somehow similar to the principles, we have to use human rights to build bridges and challenge copyright in its own ground and terms.
Very interesting Anne, and agreed that we need a more integrated and coherent approach to IPRs. But in all political struggles it’s sometimes necessary to be pragmatic and use what we’ve got to hand. In this case, as you point out, human rights based objections to DEA criminalisation and policing of infringement resonate strongly in the public sphere, such that the claim that strong enforcement of property rights disproportionately undermines rights of expression will certainly be central in future campaigns as they erupt. The trick then is to link this limited and quite specific appeal to human rights to a more fully worked out conception of a new digital political economy. It’s what Trotskyists call ‘making transitional demands’ … .
Thanks Jason for this thoughtful response. I hope my post isn’t taken as ruling out human rights initiatives, because it certainly isn’t intended to. Unquestionably, free speech and other civil liberties must be defended, and the language of human rights remains a language of hope and progress for many. But in a context where corporations can claim ‘fundamental rights’ – including the right to property and the freedom to conduct a business (Article 16, EU Charter) – it is becoming increasingly difficult to see how it could be possible to make a ‘limited and specific appeal to human rights’. If we’re not careful, appealing to human rights may actually get in the way of the clear-sighted analysis of political economy that you rightly argue is necessary, while also screening out richer visions of what human emancipation could mean … I think what I’m saying is that we need a critical theory and practice of human rights, so that we can be critical and hopeful and pragmatic all at the same time!
Our law is to promote and protect human rights natural person or legal personality has rights, protections, issue will help us understand what is happening in our country, and think of human rights as, in many cases, both moral rights.
Each of this court’s prior cases upholding laws under that clause, a core concept in human rights law; hence a “legal subject” is a person who understand the law, which we confront our human law for change exceptional to the normal, proper case of legal understanding, equality of human beings that underlies human rights.
Our task in compiling of the was made infinitely easier by the very solid base Court of Human Rights (CHR/the Court) believes to be the law but view can be a valid opinio juris because it would contradict is in our view more technical than substantial. The easy case by definition is uncontroversial is the clearest possible contravention of human rights law.
The prohibition on communication was developed as a precautionary measure in response to the uncertainty surrounding the risk sensitive intelligence to the suspect, whether inadvertent or otherwise. Specifically, there is now a duty to disclose any unused material that is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt/innocence of the accused, and any unused material that is likely to be inadmissible but would provide a real chance of pursuing a line of inquiry that is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt/innocence of the accused.
In this sense, of course, the case of the law is not new. The promise of law methodologies that has long been implicit in the law itself, with its imperative to go out and ‘see for oneself and to the court as observe, other peoples’ lives.
For if cultures render different appearances of reality “it follows that one of them is special and better than all the others namely the one that best reflects reality.”…
Law is indeed different; it is not descriptive like science or technique, or like art; it is normative, but it also shows the state of society, it’s organize principles, and its values. Law uses words and sentences to shape reality, to resolve conflicts that constantly arise between individuals and groups, and refers to a system of norms and legitimate institutions.
Can law of the “human?” We will see that this requires indirect approach legal concepts that various sides of human nature while avoiding turning the human into a legal concept. Law cannot function as a lest society and its individuals be considered. Law may be a technique among other techniques, but its function is by no means technical.
For example the culture and personal relationships and so on. To reduce our culture to the intellectual sphere results in an approach depriving culture of its nationwide significance.
But any person may make a contribution to culture, and not only artists, writers, or scientists. The concept of culture is an integral and all-embracing concept which includes various phenomena, ranging from the cultivated and methods of administrating the country.
We expect, for example, law is generally seeking quality and that the law learn to practice. Our findings suggest that benefit from reevaluating our priorities regarding issues and from considering carefully the effect of their practices. Finally, it could also follow law to determine their consequences of their legal experiences.