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 (Complete Post)

UPDATE:  Frank La Rue, the former U.N. Special Rapporteur for Human Rights who wrote the only human rights document to mention an American multinational corporation by name (Google) now works for that same American multinational corporation (Google): https://www.google.com/advisorycouncil/#bio-larue

In honor of International Human Rights Day (December 10) let us revisit this post.

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.)  Given the amount of bunk that is being spread about how prosecuting online theft violates human rights–a strange one if I’ve ever heard it–it’s important to understand whose rights are being gored here.  (To write your Member of Congress about this, try Music Rights Now.)

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 miss the point 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.  However, it has little to do with the individual’s rights the Rapporteur glosses over at the human rights level, but then 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….”

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?


See also Artist Rights are Human Rights