by Chris Castle
December 10 is International Human Rights Day. For a variety of reasons, today is a good day to think about the state of human rights in general, and for me, in the professional creative community in particular. The recent history of the protection of creator rights is a fascinating story. These discussions frequently center on the intellectual property rights of copyright or patent accorded to creators but often assigned to private companies. These are rights that are nation-specific, but are inextricably intertwined with other rights that are universal: human rights.
The human rights accorded to creators is not a topic that is frequently discussed. In fact, leading “consumer” advocates and Google advocates (such as von Lohman (formerly of the Electronic Frontier Foundation) and Patry of Google) are dismissive of “moral panics” associated with the infringement of the moral rights of creators. The term “moral panic” is generally used to criticize anyone who identifies massive stealing as theft or piracy (but is usually used pejoratively against “Big Music”–as the anti-copyright movement and other defenders of “Big Tech” such as von Lohman and Patry call the professional music business). For example--“’At its heart, [the campus downloading debate] is a fight about money, not morality. If students paid for their copying, all the shoplifting rhetoric could be shelved once and for all.’” (Powerful logic—if they paid for it and were not stealing, then they wouldn’t be called thieves. That logic will keep them busy in the faculty dining room.)
Of course, these “don’t be moral” attacks are not limited to the music industry alone; it’s just that the music industry got theirs first. Newspapers, books, motion pictures and television are all feeling the onslaught of Google, its fellow travelers and their defenders. So when the Pirate Bay defendants try to compare themselves to Google the answer is—that’s a very good point. Google may win on style points, but when it comes to artist rights, the two are very similar, which does not cut the way it was intended. The only difference is that Google gets to essentially print money to fight creators and to lobby in every capitol of the world–Pirate Bay cannot. Well–maybe not the only difference. Pirate Bay didn’t have warmed bidets or Gulfstreams.
And what bothers me the most about the massive, worldwide infringement of artist rights is not just that people are doing it. It is that the governments of the world have—until last year—done very little or nothing to stop it. And in that regard, they have violated their obligations to protect the human rights of artists.
These rights resonate in a number of international and national documents, but a good international agreement to consider first is the International Covenant on Economic, Social and Cultural Rights that was ratified by the United Nations General Assembly on December 16, 1966. It is important to remember that human rights are fundamental, inalienable and universal entitlements belonging to individuals, individual artists in our case. As a legal matter, human rights can be distinguished from intellectual property rights as intellectual property rights are arguably subordinate to human rights and actually implement at the national level the human rights recognized as transcending international and national intellectual property laws.
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.”
These human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguards the personal link between authors and their creations as well as their basic material interests. These rights are personal to the authors and artists concerned and are arguably of broader scope than the rights that can be enforced under particular national intellectual property regimes.
The human rights of authors are recognized in a multitude of international agreements, including article 27, paragraph 2, of the Universal Declaration of Human Rights: “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; 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; and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952.
These precedents clearly enunciate the goals of the international community. The Covenant is closely linked 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 moral rights include the right of authors to be recognized as creators of their works and to object to any modification of their works 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. This rule will no doubt come as a shock to those wishing to sell consumer electronics devices to the “remix culture” bent on perpetuating regurgitative “art.” Not to mention that shining example of the “hybrid economy”, the well-funded Creative Commons.
Of course it is not enough that the States of the General Assembly merely recognize these rights of artists in a number of international agreements—the States also have undertaken the affirmative obligation to protect these rights of authors. Those protections include adequate legislation and regulations, as well as making effective administrative, judicial or other appropriate remedies available to authors within each jurisdiction. Access to such remedies must be affordable, or as I have said in the past—violations of moral rights cannot be remedied only if the rich seek to enforce their rights. Anyone who takes seriously the international human rights of artists will find “Big Tech’s” dismissive use of “moral panic” to be deeply offensive to professional creators. It is Orwellian to describe as a “moral panic” an allegation of immorality being associated with massive illegal downloading that deprives creators of their ability to pursue work which they freely chose and remuneration for that work enabling them to achieve an adequate standard of living.
Google’s Patry has, in fact, travelled the world speaking to NGOs and universities trying to make his case that using the language of morality to describe massive online theft is somehow insidious and that it should stop immediately. Or, as his employer Google might say, “Don’t be moral.” This “don’t be moral” admonition obscures much more than mere lusting for commercial gain on the part of Google and the Pirate Bay. The protection of artist rights—many of the rights of the professional creative class—are entitled to protection as human rights.
This has nothing to do with intellectual property laws that apply to corporations, or “Big Music”, it has nothing to do with superstars, or the star system in general. A national artist in the smallest country has equal protection with the global superstar under the U.N. human rights treaties.
This is a complex topic that is well worth studying further.
Reposted from January 2010 MPT and MPTM
See also: The Man 2.0 in the Gray Flannel Suit