[A2k] IP-Watch: http://www.ip-watch.org/2015/03/11/human-rights-council-debates-report-criticising-copyright/

Thiru Balasubramaniam thiru at keionline.org
Thu Mar 12 10:22:16 PDT 2015


UN Human Rights Council Debates Report Criticising Copyright

11/03/2015 BY CATHERINE SAEZ <http://www.ip-watch.org/author/catherine/>,
INTELLECTUAL PROPERTY WATCH

Copyright might run counter to human rights, says a new report from the
United Nations Special Rapporteur in the field of cultural rights. In the
report, she provided a number of recommendations, including encouraging UN
World Intellectual Property Organization members to support the adoption of
international instruments on limitations and exceptions to copyright. The
report is under consideration by the Human Rights Council and was debated
extensively today.

Farida Shaheed presented her report on copyright policy and the right to
science and culture on 11 March, at the 28th session
<http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/Pages/28RegularSession.aspx>
of
the Human Rights Council, taking place in Geneva from 2-27 March.

The report
<http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/Documents/A_HRC_28_57_ENG.doc>
is
the first of two consecutive studies by Shaheed on IP policy as it relates
to the right to science and culture. The current report focuses on the
interface of copyright policy. The second report is expected to be
submitted to the UN General Assembly in 2015, and will look at the
connection between the right to science and culture and patent policy,
according to Shaheed.

Copyright Lacks Human Rights Dimension, Report Says

“Copyright laws prohibit much more than literal copying,” Shaheed said in her
presentation
<http://www.ip-watch.org/weblog/wp-content/uploads/2015/03/Statement-SR-cultural-rights-11-March.pdf>[pdf].
“They generally also render illegal translating, publicly performing,
distributing, adapting or modifying a copyrighted work without permission
or licence from the copyright holder,” she said. And, she added, copyright
holders may not be the original authors.

Shaheed said a “widely shared concern stems from the tendency for copyright
protection to be strengthened with little consideration to human rights
issues.” This is illustrated by trade negotiations conducted in secrecy,
and with the participation of corporate entities, she said.

She stressed the fact that one of the key points of her report is that
intellectual property rights are not human rights. “This equation is false
and misleading,” she said.

The report also suggests that authors must be distinguished from copyright
holders, she said, adding, “We should always keep in mind that copyright
regimes may under-protect authors because producers/publishers/distributors
and other ‘subsequent right-holders’ typically exercise more influence over
law-making.”

Shaheed said that exceptions and limitations to copyright “should be
developed to ensure the conditions for everyone to enjoy their right to
take part in cultural life by permitting legitimate educational usages,
expanding spaces for non-commercial culture and making works accessible for
persons with disabilities or speakers of non-dominant languages.”

She described the main challenge as being related to international
copyright treaties making copyright protection mandatory, while treating
exceptions and limitations as optional.

As a recommendation to address this issue, she advised in the report to
“explore the possibility of establishing a core list of minimum required
exceptions and limitations incorporating those currently recognized by most
States, and/or an international fair use provision.”

The report gives recommendations on a number of issues, such as ensuring
transparency and public participation in law-making, ensuring the
compatibility of copyright laws with human rights, and the protection of
the moral and material interests of authors.

Furthermore, the report advises WIPO members to support the adoption of
international instruments on copyright exceptions and limitations for
libraries and education. It also suggests that the World Trade Organization
“should preserve the exemption of least developed countries from complying
with provisions of the TRIPS Agreement [Trade-Related Aspects of
Intellectual Property Rights at WTO] until they reach a stage of
development where they no longer qualify as least developed countries.”
This was requested by LDCs when the last extension was discussed at the WTO
in 2013, but refused by some developed countries (*IPW*, WTO/TRIPS, 12 June
2013
<http://www.ip-watch.org/2013/06/12/ldcs-obtain-new-waiver-on-ip-obligations-at-wto-take-it-as-a-limited-victory/>
).

Developing Countries See Concern Over Rights Inhibiting Access

Reactions to the special rapporteur’s report were an echo of discussions
taking place at the WIPO Standing Committee on Copyright and Related Rights
(SCCR) where delegates are trying to agree on exceptions and limitations to
copyright for libraries, education, and people with other disabilities than
visual impairment (*IPW*, WIPO, 14 December 2014
<http://www.ip-watch.org/2014/12/14/wipo-members-conclude-year-positively-with-copyright-committee-despite-no-changes-to-text/>
).

A number of developing countries supported the conclusions of the report,
such as Ecuador on behalf of the Community of Latin American and Caribbean
States, Egypt, Iran, Venezuela, and Algeria, which said in its statement
that impact studies should be carried out on national policies and
international instruments relating to copyrights to see how they impact
human rights. Access to education, Algeria said, should be taken into
account in the discussion on exceptions and limitations to copyright.

Several countries, such as Indonesia and Brazil, commented on the issue of
the protection of local and indigenous communities, which is mentioned in
the report, for which they said “intellectual property historically failed”
to take into account the issues of indigenous peoples.

Some developing countries said the current copyright system hinders the
right to development by a violation of the right to education, health and
progress and many other rights related to affording a basic decent life to
millions in developing countries, according to UN sources.

Countries considered that an appropriate balance between the legitimate
aspiration to participate in cultural life and the protection of authorship
and copyright is crucial to guarantee the diffusion of knowledge and the
development of creativity, the sources said.

Developed Countries Defend Copyright System

The United States said in its statement that copyright laws in the US and
other countries “foster and promote culture, science, and the arts, for the
benefit not only of their creators, but also the general public.”

The report, the US found, “does not adequately acknowledge that copyright
can serve as a means to promote human rights.” The report, it said, should
have “more fully addressed the pressing challenges posed to creators by
lack of respect of intellectual property rights and for all individuals’
human rights to freedom of expression.”

The US said it disagrees with the report, in particular the recommendation
related to copyright norm-setting activities at experts’ discussion in
other international fora. They also disagreed on the suggestion that
individucal creators and corporations or businesses should merit different
protections.

Portugal said the current copyright framework constitutes an important tool
for human development, especially for cultural and scientific advancement.
The current framework provides “ample flexibility to devise, adopt and
implement meaningful exceptions and limitations that take into account both
the interests of copyright holders and users…..,” said the delegate, adding
that no new legally binding instruments in this field are needed.

The European Union said it was surprised that the report had not taken into
account “many comments” from member states and relevant stakeholders, which
it said would have ensured a more balanced outcome.

“Copyright is fundamental to creation, and as such plays an essential role
in human development. It provides the necessary reward and incentive for
those that stand at the heart of the creative process, advancing the sum of
human understanding to the benefit of all,” the EU delegate said in his
statement
<http://eeas.europa.eu/delegations/un_geneva/documents/eu_statments/human_right/20150311_clustered_id_cultural_rights_-_sale_of_children.pdf>
[pdf].
France concurred.

Japan said that the ongoing discussions at WIPO on copyright exceptions and
limitations should not be prejudiced.

Special Rapporteur Answers Concerns

Shaheed, who will be leaving office after 6 years of tenure and was the
first special rapporteur in the field of cultural rights, fended off
remarks and explained that her work was not to summarise the views that
were submitted to her. Her work, she said, was driven by human rights
concerns, not merely reflecting the perspective of the cultural industry.

A number of states today insisted on the need for balance, she said. To
countries suggesting that the Human Rights Council was not the appropriate
forum to discuss copyright policies, she said moral material interests are
enshrined in international human rights instruments and thus should be
looked into from the human rights perspective.

She said she cannot agree that copyright is the only privileged driver of
creativity and innovation. “I don’t think anyone really believes it was
always the case,” she said. “Imagine how impoverished we would be if we had
had no copyright and thus had had no contributions” from artists such as
Rembrandt, whose work was not copyrighted but still contributed to art,
culture and thinking, she said.

“Not everything can be judged by monetised considerations,” she added.

Shaheed also disagreed with the suggestion that individual creators and
corporations or businesses do not merit different protection. From the
human rights perspective, “they absolutely do,” she insisted. Corporations
and businesses are not human beings and as such cannot enjoy human rights,
she said.

“What we need is a balance and a discussion on how to go forward and ensure
that everyone’s rights are protected adequately,” she said.

Copyright at it stands does protect the rights of a number of artists but
not sufficiently the rights of all artists and in some ways prevents access
of the public to creative work, she said.

She said she engaged with both WIPO and UNESCO in the course of her mandate
and hoped that her report will spark discussions at WIPO and introduce a
human rights approach into those discussions.

Publishers Question Objectivity of Report

Jens Bammel, secretary general of the International Publishers Association,
said in his statement that “rapporteurs are required to be unbiased and
objective.”

“The rapporteur intends to defend the rights of authors against their
publishers,” he said, hinting at the fact that the submission of the
International Authors Forum and its response to the report had not been
correctly reflected in the report.

“IPA values this report as a unique perspective, a singular contribution to
a broader, more objective, fact-based and fair analysis of how the
international copyright framework is currently balancing the human rights
of creators with those of consumers.” He suggested a “more inclusive
dialogue” on the subject, “preferably at WIPO.”



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