A September 2022 decision of the European Court of Human Rights (ECtHR), Safarov v Azerbaijan, reminds us that failing to protect authors’ rights is not just an economic issue. It can be a breach of human rights. The ECtHR case is not an isolated instance. A jurisprudence on the human rights of authors is emerging in an array of different contexts. It offers new ways of thinking about domestic policy debates about the rights of authors and states’ obligations to protect them.
The ECtHR decision concerned a book that an NGO posted online without the author’s consent. In line with its earlier decisions, the ECtHR confirmed that the protection of “possessions” in the First Protocol to the European Convention on Human Rights extends to copyrights. The NGO’s actions had directly infringed the book’s copyright, but there was a further breach of the author’s rights under the First Protocol when the Azerbaijani domestic courts declined to remedy this infringement.
Human rights instruments expressly recognise authors’ rights. The Universal Declaration of Human Rights (UDHR), the 1948 cornerstone of the modern human rights movement, announces in article 27(2) that 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 XIII of the American Declaration of the Rights and Duties of Man, the world’s first human rights instrument of a general character, incorporated a similar statement. The International Covenant on Economic, Social, and Cultural Rights, a widely ratified binding instrument (subject to the qualifications in article 2), includes a similarly worded obligation in article 15(1)(c). All three instruments conjoin authors’ rights with the recognition of the right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancements and their benefits. As a leading commentator on the drafting history of these articles has said, the rights of authors “were understood as essential preconditions for cultural freedom and participation and access to the benefits of scientific progress.”
This body of international law sits alongside international instruments that might come to mind more readily when thinking about legal protections of creative work, including the great nineteenth century treaty, the Berne Convention for the Protection of Literary and Artistic Works (1886). The World Trade Organization, through the Agreement on Trade Related Aspects of Intellectual Property, conditions membership on compliance with the substantive articles of the Berne Convention.
It is conventional to see international intellectual property instruments as principally concerned with economic interests. And yet, at least in the authors’ rights context, universalist, humanist ideals, distilled from a commitment to the idea that authors’ contributions to culture transcend national boundaries, informed the original drafting of the Berne Convention. In 1986, the Assembly of the Berne Union (an association of states that was established by the Berne Convention) drew a direct connection between human rights and copyright, with its “Solemn Declaration” that “copyright is based on human rights and justice and…authors, as creators of beauty, entertainment and learning, deserve that their rights be recognized and effectively protected both in their country and in all other countries of the world.”
There now exists a growing body of official commentary on the human rights of authors, including a 2005 General Comment of the United Nations Committee on Economic, Social, and Cultural Rights (CESCR) on article 15(1)(c). The UN Special Rapporteur on Cultural Rights has issued influential statements on authors’ rights. Individual academic commentators and research centres are also engaging with the topic.
The “moral interests” referenced in the UDHR include the right to be identified as the author of a work, and to object if a work is debased or mutilated in ways that damage the author’s honour or reputation. “Material interests” include authors’ financial rewards, assuming a paying audience can be found. The Berne Convention also protects authors’ moral and material interests further underscoring the alignment between copyright and authors’ human rights. In the Azerbaijani case, the ECtHR ordered the government to pay the author EUR 5,000 for the failure to protect both his moral and material rights. Significantly, moral rights loomed larger than material interests in the award of financial compensation. The evidence of pecuniary loss was relatively thin.
Recognising authors’ rights as human rights brings with it the potential to change our thinking about domestic copyright law. Domestic policy discussions about copyright certainly tend to emphasise economic concerns. This strand of utilitarian thinking is especially strong in common law countries. Courts and commentators inquire whether copyrights are strong enough to encourage creating works of authorship, and the follow-on investment in publishing and distributing these works: books, films, music, television programmes, computer games, etc.? At the same time, copyrights should not be so strong that they inhibit other desirable forms of creative activity, such as news reporting, academic commentary, and parodies.
But if authors’ rights are human rights, copyrights should not be characterised merely as economic rewards, begrudgingly bestowed. While important, the economic framework derives from a narrow instrumentalist perspective, one that risks treating the human creator merely as means to economic ends. Authors’ human rights, in contrast, connect authors’ creative endeavours to the principle that undergirds all human rights: the dignity of all people.
In General Comment No 17 (2015), the CESCR discussed the tripartite obligations of states parties to the ICESCR to respect, protect, and fulfil authors’ rights. Respecting authors’ moral and material interests requires states to abstain from taking actions that impede the recognition of authors as the creators of their works or their ability to object to any distortion, mutilation or other modification or derogatory action in relation to their productions which would be prejudicial to their honour or reputation. States must also abstain from unjustifiably interfering with the material interests of authors. These interests do not necessarily equate with the ability to extract all possible economic value from the work. Rather, legal protections for material interests are those “which are necessary to enable those authors to enjoy an adequate standard of living.” Obligations to protect authors’ rights require states to “ensure the effective protection of the moral and material interests of authors against infringements by third parties,” acknowledging that the obligations are relevant to horizontal relationships between private parties. The obligation to fulfil requires States to “provide administrative, judicial or other appropriate remedies in order to enable authors to claim their moral and material interests.” The General Comment also recognises that, if these rights are not to be “devoid of any meaning” their protection “needs to be effective.”
Addressing the problem of online piracy of authors’ works is key to effective realisation of the human rights promise of protecting authors’ material and moral interests. Governments should therefore assess whether adequate legal tools are in place to enforce authors’ rights. These tools include “site-blocking orders” which require Internet Service Providers to prevent unlicensed access to copyright-protected materials. Many countries, including Australia, have adopted these measures. The 2001 EU Information Society Directive requires EU Member States to ensure that copyright owners “are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right” (article 8(3)). The 2004 EU Enforcement Directive extends this obligation to all intellectual property rights. These remedies, directed at limiting exposure to massive online infringement, are not yet available everywhere. The UK/NZ free trade agreement includes an obligation to make blocking order injunctions available. The recently-released text of the EU/NZ free trade agreement sets out an equivalent obligation, in wording that closely tracks the language of the Information Society Directive. The New Zealand government has suggested that the senior courts may already have this power, under their inherent jurisdiction. Unfortunately, the significant expense of High Court proceedings may put this remedy beyond the reach of many authors.
Within the EU, the obligations go yet further. The 2019 Digital Single Market Directive (DSM) imposes liability on large content-sharing platforms for copyright-protected material shared by users. Immunity depends on securing a licence from rights holders for the display of this content. Absent a licence, immunity is conditioned on taking prescribed steps to prevent the accessibility of infringing material. A recent decision of the Court of Justice of the European Union (CJEU) held that while implementation of the DSM is likely to restrict the right to freedom of expression (as guaranteed under the Charter of Fundamental Rights of the European Union), the restriction was a proportionate response to online infringement. Importantly, the DSM’s preclearance system largely removes the litigation burden imposed on authors.
The CESR’s analysis also underscores the need to ensure that barriers to enforcing authors’ rights should not be too high. The point is especially salient in the New Zealand context, where markets for the products of creative endeavour are not large. Some countries, including the United States, have advanced new initiatives to solve copyright disputes in a low(er)-cost forum. In England and Wales, authors and other owners of copyrights have the Intellectual Property Enterprise Court, which has a small claims track for disputes involving claims up to £10,000 – a significant sum for many working authors. Initiatives of this kind warrant consideration elsewhere.
As the term implies, “authors’ human rights” foreground the human creator. The CESCR has said that corporations are not the beneficiaries of authors’ human rights. Furthermore, copyrights are not, as the UN Special Rapporteur on Cultural Rights has observed, synonyms for authors’ human rights. That said, the copyrights owned by large firms offer the means to pay the individual creators whose work contributes to productions that are expensive to make, such as films and television programmes. They are therefore relevant to the security of authors’ moral and material interests, even if firms are not direct beneficiaries of authors’ human rights.
Even so, a human rights lens offers new perspectives on power imbalances that exist in contractual negotiations between authors and large firms. Authors often give away their rights too cheaply, or enter into agreements that fail fully to include authors in the future success of their works. Some national copyright laws soften the economic consequences of these transactions by, for example, by providing for automatic revision of rights after a specified period. The Canadian Copyright Act is an example. Other laws give authors the right to terminate or re-open transfers of rights after a defined period. The UN Special Rapporteur on Cultural Rights has suggested that termination rights advance the human rights of authors.
The idea that protecting creative outputs is not just an instrumentalist economic issue is apparent in other fundamental rights contexts. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognises the right of indigenous peoples to “maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions” and requires states, in conjunction with indigenous peoples, to “take effective measures to recognise and protect the exercise of these rights” (article 31). The reference to the efficacy of protective measures aligns with statements by CESCR in relation to the obligation to protect the rights of authors. Recall that it was the failure to protect the author’s rights in the Azerbaijani case that prompted the ECtHR to find there had been a breach of the obligations in the ECHR. Current work by the WIPO references UNDRIP in preliminary drafts of instruments aimed at providing enhanced international protections for indigenous peoples’ genetic resources, traditional cultural expressions, and traditional knowledge. The draft articles of the WIPO instruments directed at enhancing protections for traditional cultural expressions specifically acknowledge the “dignity, cultural integrity and spiritual values” of “holders” of cultural expressions. The objectives of the instrument include achieving “balanced and adequate protection” of this material.
In Aotearoa New Zealand, the Te Tiriti o Waitangi (Treaty of Waitangi) is a source of legal protections for kaitiaki (or guardianship) interests of Māori in respect of cultural productions. Like all authors, indigenous peoples are entitled to derive a livelihood from creative work, so these rights are partly economic. But there is also legal salience to the deep connections that exist between creators and their works, and the links to identity and cultural survival. While the rights guaranteed under Te Tiriti have a different legal grounding from international human rights protections for authors, there is common ground between them.
Refreshingly, there have been a few signs that cognisance of authors’ human rights is emerging in domestic policy frameworks. For example, with the introduction of legislation providing for site-blocking measures, the Australian Parliament referred to the rights of authors in the ICESCR. Here, authors’ rights provided a counterweight to claims that site-blocking orders would impermissibly trespass on the right to freedom of expression. Acknowledging that authors’ rights are human rights implies that copyrights do not always need to give way when other human rights are invoked. As the CJEU has explained, a balance is needed between the different rights in play. This is also consistent with statements by the CESCR recognising that an “adequate balance” must be achieved between the obligation to protect other rights in the ICESCR and the rights of authors.
Sometimes, the balancing analysis does support tempering the controls authors and copyright owners are otherwise entitled to exercise over their works. An example is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled, a WIPO initiative which came into force in 2016 – a major step toward enabling blind and other print-handicapped persons to access the printed word and participate equally in cultural life. The Preamble to that instrument references the principles of “non-discrimination, equal opportunity, accessibility and full and effective participation in society”, proclaimed in both the UDHR and the UN Convention on the Rights of Persons with Disabilities.
Looking further ahead, authors’ human rights might inform thinking about the protections that AI-produced outputs deserve. If authorless AI products ever evolve from curiosity to cultural onslaught, authors’ human rights might inform thinking about the legal protections they deserve. Here, though, taking authors’ human rights seriously might pull in a different direction. The idea that AI-produced products merit copyright protections has met with significant scepticism. There is certainly no human rights basis for protecting them. After all, without human authors, “authors’ human rights” is an oxymoron.
Graeme Austin rejoined the law faculty of Victoria University of Wellington in 2010 as Chair of Private Law after serving for nearly ten years as a tenured professor at the University of Arizona. With first degrees from Victoria University of Wellington (BA(Hons), LLB, LLM (distinction)), he graduated LLM and JSD (PhD equivalent) from Columbia University, where he held the Burton Fellowship in Intellectual Property. His published work has focused on a range of intellectual property and private law subjects and has been twice cited by the United States Supreme Court. He is currently researching technological protection measures and the right to repair.
Jane C Ginsburg
Jane C Ginsburg is the faculty director of Columbia’s Kernochan Center for Law, Media, and the Arts. Prof Ginsburg is a renowned authority on intellectual property law and a staunch defender of authors’ rights. She teaches and writes about copyright law, international copyright law, legal methods, statutory methods, and trademark law. She is also the author or co-author of casebooks on all five subjects, including International Copyright: U.S. and EU Perspectives (with Edouard Treppoz) and Copyright: Cases and Materials (9th ed) (with Robert A. Gorman and R. Anthony Reese).