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 2

This post is the second and final part of the piece on the Report of the Special Rapporteur to the U.N. Human Rights CouncilSee Part 1.

The Missing Straw Man

It appears that the report has already engaged in an a priori balancing of human rights and has determined—without elucidating the argument—that the rights the Rapporteur was charged with investigating are so superior to the human rights of artists that it is not even necessary to make the justifying argument. But surely that willful neglect cannot be defended by instead arguing to protect corporate intermediaries from claims of copyright infringement. Perhaps I simply prefer not to imagine an Android with the Four Freedoms tattooed on its backside.

These human rights of artists are not easy to miss without trying pretty hard. They resonate in a number of international and national documents. As referenced above, the human rights of authors are also recognized in article 27, paragraph 2, of the Universal Declaration of Human Rights of 1948: “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”; article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948 (“Every person has the right…to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author”); article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (the Protocol of San Salvador) (“The States Parties to this Protocol recognize the right of everyone…[t]o benefit from the protection of moral and material interests deriving from any scientific, literary or artistic production of which he is the author”); and indirectly in article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952 (the European Convention on Human Rights).

Another good international agreement to consider is the International Covenant on Economic, Social and Cultural Rights that was ratified by the United Nations General Assembly on December 16, 1966. The Covenant recognizes everyone’s right—as a human right–to the protection and the benefits from the protection of the moral and material interests derived from any scientific, literary or artistic production of which he or she is the author. This human right itself derives from the inherent dignity and worth of all persons. The Covenant recognizes these rights of artists (in article 15, paragraph 1 (c):“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 or she is the author”). The Covenant is in harmony with the right to own property (recognized in article 17 of the Universal Declaration of Human Rights) and workers’ rights to adequate remuneration. The “material interests” protected by the Covenant are protected under the right to an adequate standard of living.

These precedents clearly enunciate the goals of the international community and use nearly identical wording to do so. These moral rights include the right of authors to be recognized as creators of their works and to object to any modification of their works—including the user-generated content that the Rapporteur defends–that would be “prejudicial to their honor and reputation.” The protected interests of artists include the right to just remuneration for their labor as well as the moral right to the “intrinsically personal and durable link” between creators and their creations that survives even after the passing of the work into the public domain.

Yet the Special Rapporteur ignores these rights when he draws this conclusion:

Disconnecting users from Internet access, including on the basis of intellectual property rights law

78. While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

79. The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.”

I am not a fan of disconnecting people from the Internet, even when they try very, very hard to get themselves into trouble. But having said that, it should also be increasingly obvious that the Internet can be used as a potent weapon for what are essentially arbitrary and vigilante style attacks. I’m also not a fan of allowing someone to have access to weapons who has demonstrated they can’t handle them, and I’m really not a fan of forcing artists around the world to monitor the Internet 24/7/365 to stop law breakers before they infringe again.

If Walks Like a Duck…

Important but sporadic efforts by national governments have been met with shrill opposition whose messaging revolves around a similar axis—stop at nothing to keep governments from protecting their artists from the gradual hemorrhaging of their rights. And never agree that anyone should ever be cut off from the Internet. Getting agreement on that point is almost as hard as cutting off repeat infringers on YouTube or Facebook—why would they get rid of a customer?

If there seems to be a coordinated effort in many countries to oppose the rights of creators, that’s because there is—a complex effort very well described in the book Winning the Web, written by the former head of the Open Rights Group and sponsored by the Open Society Institute (www.soros.org). (The Open Rights Group (or “ORG”) is essentially the UK version of the Electronic Frontier Foundation and is a voice in the opposition to artist rights protection under the UK Digital Economy Act.)

By “oppose” I mean extensively lobby against virtually any statute designed to help nation states develop the tools necessary to bring the same laws to bear online as are given effect offline. Duly enacted laws passed through a democratic process and subject to judicial review all are vilified in the name of “innovation”—such as the HADOPI law in France, the Digital Economy Act in the UK, copyright reform in Canada and the Anti-Counterfeiting Trade Agreement. The coordinated efforts against these legitimate actions are well-documented in Winning the Web.

But these coordinated attacks on artists’ rights also extend to some unlikely places—such as the United Nations Human Rights Council. Because, you see, if somehow the anti-copyright crowd can define away an artist’s right to protect their rights by making them small (such as Lessig’s obliging piece “The Starving Artist Canard“) , then it is easier to define them out of existence altogether. And doesn’t that just sound like a human rights violation? Maybe it is. As Lessig said on a Pirate Party UK video, “we” should not “break the Internet” to protect a “tiny industry”—that “tiny industry” would be professional creators and their commercial partners. And now the UN Human Rights Council seems to be making the same choices.

I find it very strange that this Special Rapporteur fails to address even one time the human rights of artists. The Special Rapporteur’s conclusions would impose grave burdens on artists, yet bends over backwards to protect the rights of corporate intermediaries online.

In fact, the report ends up perfectly in alignment with the recent public statements of Eric Schmidt. It’s also very close to the talking points of the Center for Democracy and Technology (a group cited by the Special Rapporteur). Alan Davidson, formerly of the Center, now is Director of U.S. Public Policy, Americas for Google, Inc., so it should not be surprising to find that the CDT is identified in recent court papers—in an uncontested filing by EPIC—as part of a group of “lobbyists” and “consultants” paid by Google. And cited favorably by the Special Rapporteur (at n. 27).

That connection to the Special Rapporteur is so inexplicable it makes you wonder.

Another odd little fact that may be of no consequence is that the report is dated May 16, 2011 but was released on June 3, 2011. What else was going on that week that might have been related to the report? It could have been a coincidence, but I can’t help noticing that the release of the report was sandwiched nicely between the appearance of Eric Schmidt and Mr. Lessig at the G8 where they were touting versions of its conclusions, and the World Copyright Summit the following week.

But perhaps more importantly, the BBC reported that “Jim Killock of the [UK] Open Rights Group [cited above] welcomed Mr La Rue’s report, saying it highlighted that cutting people’s internet access as a punishment was “stupid”…. Mr Killock believes Mr La Rue’s announcements – and the possibility of formal adoption – is already having its desired effect.”

Its “desired effect.” An odd turn of phrase.

Desired by whom?

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See also Artist Rights are Human Rights