The human rights of artists is a different concept from intellectual property rights, such as copyright. Intellectual property rights are created by national laws, and the human rights of artists are recognized as the fundamental rights of all persons by all of the central human rights documents to which hundreds of countries have agreed.
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 (“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 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) (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”).
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.
Apple Music for one have recognized the importance of protecting these essential interests of artists, albeit only recently. But I’ll take it. Apple’s commitment is reflected in the iTunes style guide that prohibits the practice of “covering” a song made popular by a different artist, but including that artist’s name in the metadata under the guise of “tribute to” or “inspired by” when the commercial incentive is to include that original artists name in the track metadata so that those searching for the original artist will find the cover. One might ask why this offensive practice became an art form only on digital services if that’s not the true motivation.
But what bothers me most about the massive, worldwide infringement of artist human rights is not just that major multinational corporations like Google are knee-deep in perpetuating this exploitation economy. It is that the governments of the world have done very little or nothing to stop it. And in that regard, these governments have failed to protect the human rights of artists.
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.)
But these coordinated attacks on artists’ rights also extend to some unlikely places — such as the United Nations Human Rights Council. This is not surprising because there has been a sustained effort to define away an artist’s ability to protect these transcendent rights (“it’s not really property so it can’t really be theft”)–the success of the anti-copyright crowd in destroying artists is in part dependent on getting over this issue. If the ORG, EFF and Google can define away an artist’s right to protect their rights through ridicule (such as Lessig’s obliging piece “The Starving Artist Canard“) , or by making them small as Lessig said on a Pirate Party UK video, “we” should not “break the Internet” to protect a “tiny industry” such as the hated “Hollywood”, then it will be easier for Google to roll over artists. Then it is easier to define an artist’s human rights out of existence altogether.
And doesn’t that just sound like a human rights violation?
Their reach is deep–I find it very strange that the United Nations 2011 report on promoting freedom of expression Frank La Rue the then-Special Rapporteur for the UN Human Rights Commission failed to address the human rights of artists even once but mentioned Google in glowing terms seven times. Who is most likely to be doing the expressing part, artists or Google?
The Special Rapporteur’s conclusions would impose grave burdens on artists, yet bends over backwards to protect the rights of corporate intermediaries online–and specifically mentions Google. Mr. La Rue, by the way, now advises Google on “right to be forgotten” take downs.
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. This is, after all, what the Sovereign is all about.
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— violations of moral rights cannot be remedied only if the rich are able to enforce their rights.
Unfortunately, this is not the current state of the world, even — perhaps especially — in developed countries. If an artist calls 911 because her car is being stolen out of her driveway, the police will respond. If the same artists calls 911 because her life’s work is being stolen online, nothing happens. This is a righteous complaint because it goes to the heart of the social contract between the Sovereign and the governed.
Some in the “Big Tech” orbit have described artist complaints of these human rights violations as “moral panics.” 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 creators. It is Orwellian to describe as a “moral panic” an allegation of immorality being associated with massive infringement by means of weaponized search supported by advertising. Infringment that deprives creators of their ability to achieve an adequate standard of living. In fact, one Google representative dismissed demanding fair payment as “fetishizing royalties.”
This “don’t be moral” admonition obscures much more than mere lusting for commercial gain on the part of Google, Popcorn Time or Bit Torrent. The protection of artist rights — many of the rights of the professional creative class — are entitled to protection as human rights.