Did Mr. La Rue Miss the Elephant in the Room? A Critique of the Report of the Special Rapporteur to the U.N. Human Rights Council, Part 1

It is not lost on professional creators and those who care about them that an already tough business has  gotten tougher in the last
decade.  These creators watched—sometimes literally—their works being parlayed into billions for everyone in the distribution chain.  Except the original creator, of course.  (Yes, billions—if recent disclosures about the size of the rogue site advertising revenues are a guide.)

Now comes the Special Rapporteur for the UN Human Rights Council to deny artists their human rights while attempting to enshrine “intermediaries” who profit from the losses of creators. (Note that this report is not a declaration of the UN General Assembly, it is merely a report by an employee of the Human Rights Council–albeit an important document, but not one with the provenance of the United Nations Member States.)

Who Are These People?

The “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue” will no doubt get much play by the anti-copyright crowd in coming days.

Mr. La Rue, the Special Rapporteur, is Guatemalan and is well-respected in the human rights community but to my knowledge is unknown to the creators’ rights world—but why let that get in the way.  For the moment, suffice it to say that there are some very strange interpretations of artist rights and intellectual property rights in the “international community.”

So this is an odd bunch to be writing a human rights report about free expression.  But I would say cynically that what is not at
all odd about the report is that it largely focuses on that principle that is the epitoma suprema of all international jurisprudence on the value of human life, that cherished bulwark of centuries of law and tradition on protecting human rights—yes, I’m talking about intermediary liability of distributors for copyright infringement.

A joke, you say?  Unfortunately not.

Tell the Artists to get a Court Order

Yes, this intermediary liability of distributors issue is very important—so important, it cannot be left to artists to deal with directly.  No, “[t]he Special Rapporteur welcomes initiatives taken in other countries to protect intermediaries, such as the bill adopted in Chile, which provides that intermediaries are not required to prevent or remove access to user-generated content that infringes
copyright laws
until they are notified by a court order.”  (My emphasis.)  Also known as getting “home towned” in the
litigation trade.

It will come as welcome news to artists that their human rights are so precious that the Special Rapporteur wants to be sure that these rights are thoroughly litigated.  The Special Rapporteur would have artists bear the expense of prevailing in national litigation all over the world to obtain a court order to protect their rights—link by link, intermediary by intermediary, country by country—probably through the final appeal in the International Court of Justice.  Just in case they were wrong about who is stealing their life’s work because it’s so easy to make a mistake about that kind of thing. And of course, pending appeal the ad-supported thievery
would continue.   Actually–maybe that news is not so welcome?

The Special Rapporteur tells us that “[w]hile blocking and filtering measures deny access to certain content on the Internet,
States have also taken measures to cut off access to the Internet entirely….[The Special Rapporteur] is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet
service, such as the so-called “threestrikes-law” in France and the Digital Economy Act 2010 of the United Kingdom.”

So artists have to get a court order, but Internet access to thieves cannot be cut off no matter how many times they offend.  So much for the repeat offender doctrine at the heart of the Google v. Viacom case.

He goes on: “[I]ntermediary liability is imposed through privacy and data protection laws. For example, a court in Italy convicted three Google executives for violating the Italian data protection code after a video depicting cruelty to a disabled teenager was
posted by a user on the Google video service. Even though the video was taken down within hours of notification by Italian law enforcers, the judge found the Google executives guilty.”

It has never been the law that once a criminal is caught, there is no punishment if the criminal promises to never to do it again.  Except at the Human Rights Council, apparently.  Mr. Gaddafi will be so pleased.

Yet within this complex discussion of human rights in the context of copyright infringement by intermediaries and specifically Google, why is there no mention of the human rights of artists?  How did they get disappeared?

From the Sublime to the Mundane

No one—certainly no artist–is going to argue that it is important to preserve the human rights of free expression and opinion, including on the Internet.  And neither should anyone argue that the Internet is a tool that is ready-made for suppression of those very rights.  But I would hope that I could persuade you that a report that appears to be a discussion of the international law of human rights that ends up talking about national laws establishing the liability of Internet intermediaries—such as Google, curiously mentioned in the report by name a few times—trivializes an extraordinarily important issue.

I would also suggest that the report poorly argues its case for a number of reasons.  One is because the argumentation shifts focus back and forth between a narrow category of fundamental human rights laws and a broad category of unrelated and more mundane national laws, attempting to draw a conclusion about the former by reference to the latter.  And it also is poorly argued because it simply ignores the elephant in the room that we will now consider.

Artist Rights Are Human Rights

There are many UN human rights documents that establish the human rights of artists.  Artists’ human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguard the personal link between authors and their creations as well as their basic material interests.   They are obviously more important than Google’s intermediary liability for copyright infringement—an affirmative defense to a national law.  Surely that’s further down the food chain that the fundamental human rights of artists?

The Special Rapporteur cites to several human rights documents in the report, and focuses his attention on the freedom of
expression and opinion.  Surely it is not lost on him that the end result of the protection of artist rights is in fact the expression in their artistic works of the opinions of these very artists?  Is it really necessary to give examples from ancient to contemporary cultures? (“The line between the informing and the entertaining is too elusive for the protection of that basic right.” Winters
v. New York
, 333 U.S. 507, 510 (1948).)

That is why the human rights of these artists are expressly protected in one of the very documents cited by the Rapporteur: The Universal Declaration of Human Rights.  He cites to article 19 (“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”);   I would ask him to read a little further and to show the world how he distinguishes article 27, paragraph 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”.    The Rapporteur may well be able to make a convincing case for how to parse opinion and expression from artistic expression and for why the former is superior to the latter—but he didn’t even try.

He relies, unduly so in my view, on the International Covenant on Civil and Political Rights, a document that is vital as far as it goes, but has little to do with the individual’s rights the Rapporteur glosses over at the human rights level, but elevates on the level of national intellectual property laws in part to protect corporate intermediaries.  His lack of argument is not saved by according
to corporate intermediaries the human rights protection from national law claims for copyright infringement reserved to people.

To be clear:  Censorship is anathema to artists—artists taking action to protect their rights is not censorship, and neither are laws allowing them to do so, all of which are aimed at protecting artistic expression and the “protection of the moral and material interests resulting from any…artistic production….”

Read Part 2

See also Artist Rights are Human Rights