Cultural participation is an internationally recognized human right. But there is ambiguity in its meaning and scope. One of the most challenging dilemmas is to reconcile the rights to cultural participation and copyright protection, which can often be at odds.
This part of the course explains how such conflicts arise, and what might be done to resolve them. We’ll discuss sampling and the remix culture a concrete example of this problem, kicking things off by watching (and critiquing) this documentary film during class on Monday:RiP: A Remix Manifesto.
Before we get into the international legal framework governing this aspect of the intersection between intellectual property and human rights, I’d like to get your attention by talking about what this means in practice for ordinary people like you and me. To explore that issue, I’d like to introduce you to the seminal work of Lawrence Lessig. Please read excerpts of his book (free to download under a Creative Commons licence) from pages 53-61 and 183-207. Don’t worry, it is an exceptionally easy read.
Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, (The Penguin Press, 2004) at pp. 53-61, 183-207.
Now that you’re alert to the big-picture issues, we can delve a little deeper. We’ll skip Lessig’s book this year because the RiP documentary serves the purpose of throwing us into the issues quickly (and even features interviews with Lessig himself).
Yes, cultural expression is mainly the domain of copyright, as opposed to other forms of intellectual property rights. And the basis of international copyright law is the 1886 Berne Convention administered by the World Intellectual Property Organization. We’ll already discussed this quite a bit in the context of TRIPs, but here is the actual Berne treaty, for those who are interested. I’d ask everyone to at least skim it.
Berne Convention for the Protection of Literary and Artistic Works (9 September 1886), 828 United Nations Treaty Series 221.
Recall that Berne is effectively incorporated by reference into TRIPS through Section 1, Article 9:
- Agreement on Trade Related Aspects of Intellectual Property (15 April 1994) in Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 United Nations Treaty Series 299 (entry into force 1 January 1995), Article 9.
The latest important issue in terms of copyright is implementation of WIPO’s “internet treaties.” To get a flavour for why and how they’re affecting global IP policy and in particular developing countries, check out this article from Ruth Okediji.
So that’s the governing international law in terms of protecting copyright. The paradox that there are rights to both restrict and have access to cultural expression can traced back to the Universal Declaration of Human Rights of 1948. Article 27 of the UDHR is a short provision but it sets up a big problem. See what I mean:
- Universal Declaration of Human Rights (10 December 1948), G.A. res. 217A (III), UNGAOR, 3d Sess., Supp. No. 13, U.N. Doc A/810 (1948) 71, Article 27.
Article 15 of the International Covenant on Economic, Social and Cultural Rights further illustrates the conundrum. Read it for yourself:
- International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 United Nations Treaty Series 3 (entry into force 3 January 1976), Article 15.
How do you reconcile 15(1)(a) and (b) with 15(1)(c)? Well, there’s a UN committee tasked with supervising the Covenant. This committee (the CESCR) can make authoritative statements about the meaning of the Covenant’s provisions. It has done so in this “General Comment No. 17 (2005).” I don’t actually need you to read that, because it is long and technical, but be aware of it because you’ll see references to it later in this lesson.
Given the links between copyright and culture, it is no surprise that WIPO isn’t the only international organization active in this area of global governance. In 2001, the United Nations Educational, Scientific and Cultural Organization adopted a Universal Declaration on Cultural Diversity, intended to humanize and make globalization more culturally sensitive. One of the express objectives of UNESCO’s action plan was: “Ensuring protection of copyright and related rights in the interest of the development of contemporary creativity and fair remuneration for creative work, while at the same time upholding a public right of access to culture … .” Several years later, UNESCO adopted a new international agreement, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, drafts of which had made strong statements about culture and intellectual property, though those statements were omitted from the final text.
Although the language in the “Convention on Cultural Diversity” (for short) was watered down, the underlying issue remains very much alive. To illustrate that point in the context of social justice, I’d like us to come back to the real-world impact this has on our ability to participate in the making of our own culture.
One way of relieving the tensions between copyright protection and cultural participation is through the legal doctrine of fair dealing, called fair use in some jurisdictions. Fair use/dealing is a safety value in copyright, permitted under international law by Article 9(2) of the Berne Convention and Article 13 of TRIPs, which contain what is known as the “3-step test.” Fair use/dealing is profoundly important, but notoriously difficult to apply in practice. Paraphrasing Lessig, the right to fair use is often just the right to hire a lawyer to argue your case.