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SPICY IP TIDBIT: UN Special Rapporteur on impact of intellectual property regimes on the enjoyment of right to science and culture


The Special Rapporteur, in her report to the Human Rights Council, focused on the impact of intellectual property regimes on the enjoyment of right to science and culture, as enshrined in article 15 of the International Covenant on Economic, Social and Cultural Rights. The report examines copyright from a critical but often neglected perspective of human dimension. [Note that the Human Rights Council is an inter-governmental body within the United Nations. It is responsible for the promotion and protection of human rights around the globe.]

I am copy-pasting the recommendations for the benefit of the readers:

Ensuring transparency and public participation in law-making

  1. International intellectual property instruments, including trade agreements, should be negotiated in a transparent way, permitting public engagement and commentary.
  2. National copyright laws and policies should be adopted, reviewed and revised in forums that promote broad engagement, with input from creators and the public at large.

Ensuring the compatibility of copyright laws with human rights

  1. International copyright instruments should be subject to human rights impact assessments and contain safeguards for freedom of expression, the right to science and culture, and other human rights.
  2. Such instruments should never impede the ability of States to adopt exceptions and limitations that reconcile copyright protection with the right to science and culture or other human rights, based on domestic circumstances.
  3. States should complete a human rights impact assessment of their domestic copyright law and policy, utilizing the right to science and culture as a guiding principle.
  4. National courts and administrative bodies should interpret national copyright rules consistently with human rights standards, including the right to science and culture.
  5. Copyright laws should place no limitations upon the right to science and culture, unless the State can demonstrate that the limitation pursues a legitimate aim, is compatible with the nature of this right and is strictly necessary for the promotion of general welfare in a democratic society (art. 4 of the International Covenant on Economic, Social and Cultural Rights). Standards applicable to restrictions on freedom of expression must also be duly taken into consideration. In all cases, the least restrictive measure shall be adopted.

Protection of the moral and material interests of authors

  1. The right to protection of authorship is the right of the human author(s) whose creative vision gave expression to the work. Corporate right holders must not be presumed to speak for the interests of authors. Both professional and amateur creators must be empowered to have a voice and influence over copyright regime design.
  2. Merely enacting copyright protection is insufficient to satisfy the human right to protection of authorship. States bear a human rights obligation to ensure that copyright regulations are designed to promote creators’ ability to earn a livelihood and to protect their scientific and creative freedom, the integrity of their work and their right to attribution.
  3. Given the inequality of legal expertise and bargaining power between artists and their publishers and distributors, States should protect artists from exploitation in the context of copyright licensing and royalty collection. In many contexts, it will be most appropriate to do so through legal protections that may not be waived by contract. Enforceable rights of attribution and integrity, droit de suite, statutory licensing and reversion rights are recommended examples.
  4. States should further develop and promote mechanisms for protecting the moral and material interests of creators without unnecessarily limiting public access to creative works, through exceptions and limitations and subsidy of openly licensed works.
  5. Copyright law is but one element of protection of authorship. States are encouraged to consider policies on labour practices, social benefits, funding for education and the arts, and cultural tourism from the perspective of that right.

Copyright limitations and exceptions and the “three-step test”

  1. States have a positive obligation to provide for a robust and flexible system of copyright exceptions and limitations to honour their human rights obligations. The “three-step test” of international copyright law should be interpreted to encourage the establishment of such a system of exceptions and limitations.
  2. States should consider that exceptions and limitations that promote creative freedom and cultural participation are consistent with the right to protection of authorship. Protection of authorship does not imply perfect authorial control over creative works.
  3. States should enable allowance for uncompensated use of copyrighted works, in particular in contexts of income disparity, non-profit efforts, or undercapitalized artists, where a requirement of compensation might stifle efforts to create new works or reach new audiences.
  4. States should ensure that exceptions and limitations cannot be waived by contract, or unduly impaired by technical measures of protection or online contracts in the digital environment.
  5. At the domestic level, judicial or administrative procedures should enable members of the public to request the implementation and expansion of exceptions and limitations to assure their constitutional and human rights.
  6. WIPO members should support the adoption of international instruments on copyright exceptions and limitations for libraries and education. 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, should also be explored.
  7. WTO should preserve the exemption of least developed countries from complying with provisions of the TRIPS Agreement until they reach a stage of development where they no longer qualify as least developed countries.

Adopting policies fostering access to science and culture

  1. Open access scholarships, open educational resources and public art and artistic expressions are examples of approaches that treat cultural production as a public endeavour for the benefit of all. Those approaches complement the private, for profit models of production and distribution and have a particularly important role.
  2. The products of creative efforts subsidized by governments, intergovernmental organizations or charitable entities, should be made widely accessible. States should redirect financial support from proprietary publishing models to open publishing models.
  3. Public 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 licences.

Indigenous peoples, minorities and marginalized groups

  1. Creativity is not a privilege of an elite segment of society or professional artists, but a universal right. Copyright law and policy must be designed with sensitivity to populations that have special needs or may be overlooked by the marketplace.
  2. States should institute measures to ensure that all people enjoy the moral and material interests of their creative expressions and to prevent limitations, such as geography, language, poverty, illiteracy, or disability, from blocking full and equal access to, participation in and contribution to cultural and scientific life.
  3. States should ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, and ensure that their copyright laws contain adequate exceptions to facilitate the availability of works in formats accessible to persons with visual impairments and other disabilities, such as deafness.
  4. States should adopt measures to ensure the right of indigenous peoples to maintain, control, protect and develop their intellectual property over their cultural heritage, traditional knowledge, and traditional cultural expressions.
  5. Further studies should be undertaken to examine what reforms are needed to better enable access to copyrighted materials in all languages, at affordable prices.

The right to science and culture and copyright in the digital environment

  1. All stakeholders should devote more focused discussion on how best to protect the moral and material interests of authors in the digital environment, taking care to avoid a potentially disproportionate impact on the rights to freedom of expression and cultural participation.
  2. Alternatives to criminal sanctions and blocking of contents and websites for copyright infringement should be envisaged.”
Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

One comment.

  1. AvatarNeeraj K.S. Thakur

    ALAS! Someone in the learned gallery has guts to speak about society. Yes, Strict implementation of Copyright L:aws is a gross violation of Human Rights as enshrined in Article 27 and 29o international Charter of Human Rights
    It is pertinent to note that Ownership of an author is not by any means beyond and superior to the needs of the society.
    Thanks George for this article. IF not many, We as Event Managers have a definite following for this school of thought.

    Reply

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