Reformulating knowledge policy "balance" around human rights has missing ingredient: commons

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2014 dissertation A Roadmap for Assimilating Authors’ and Users’ Human Rights into International Copyright Law and 2016 paper Toward a Human Rights Method for Measuring International Copyright Law’s Compliance with International Human Rights Law by Saleh Al-Sharieh.

The Berne Convention, TRIPS, the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights and General Comment No. 17 (2005) on the last are the primary background materials.

Here’s what I think Al-Sharieh is arguing, fundamentally:

  • “balance” is problematic for copyright, even more so considering copyright and human rights
  • human rights have primacy over economic rights and policies, but authors and users have human rights, neither of which takes precedence
  • a new “delicate balancing” of authors’ and users’ human rights is needed
  • taken via TRIPS or WIPO reforms to the international copyright system, various reforms could be taken toward this new human rights-centric balancing, including
    • public funding programs
    • public lending remuneration schemes
    • termination rights
    • add moral rights provision to TRIPS
    • mandatory fair use, fair dealing, or exhaustive listing of users’ rights provision
    • allow TPM circumvention unless directed toward infringement
    • notice-and-notice rather than notice-and-takedown regime, ensuring role for public courts

I suspect this amounts to a very progressive agenda given current property/incentive dominated discourse. To be it’s still extremely deficient: in theory, balance should still be rejected, in practice, commons must be central to reform. But, Al-Sharieh has still made a valuable contribution, both for readable and in-depth explanation with voluminous references, and a few excellent hints (intended or not). First:

Neither the UDHR nor the ICESCR requires the protection of authors’ moral and material interests by means of exclusive rights, which is only one way of implementing these rights and the method which most likely causes tension between authors and users. Yes, let’s run with that, then run with it some more, and more.


Furthermore, the length of protection in the Berne Convention does not necessarily contribute to providing an adequate standard of living for authors, which is the essence of authors’ material rights in international human rights law.

Indeed, nothing about copyright necessarily contributes to providing an adequate standard of living for authors.

Third and fourth, and closely related to the above two are suggestions for public funding programs for authors, and of public lending remuneration schemes that could and sometimes are independent of copyright, tackling pre- and post-creation provision, potentially in a ways that do not infringe on users’ rights. Of course these could be made more robust by only paying for work and works that definitely does not infringe on user’s rights, i.e., is contributed to the commons under free/open terms.

What does Al-Sharieh have to say about the commons? Dissertation excerpt:

Second, the right of users to use and build upon intellectual works to create other works rests under the participation component of the right to participate in cultural life. Users’ right to “develop cultural knowledge and expressions”555 provides users with the right to use them for the purpose of producing further works or improving the existing ones. To develop is to “grow or cause to grow and become more mature, advanced, or elaborate.”556 Thus, developing cultural knowledge and expressions intrinsically implies a process whereby users make changes to original intellectual works to improve or transform them into new works.

As culture becomes more intrigued with digital content, the reciprocal relationship between creation and use of intellectual works becomes more conspicuous and, as aptly described by Professor Lawrence Lessig, marks a remarkable shift of the emphasis from “read-only culture”557 to “read and write culture.”558 In the “read-only culture”, the use of intellectual works takes the traditional forms of reading and quoting, whereas in the “read and write culture” it extends to take another interface in which people, in addition, “‘write’ using images, or music, or video,”559 mix words, images, or sounds to produce new intellectual works, and share such works with others using digital networks.560

Third, users of intellectual works have the right to “share” with others whatever intellectual works they have accessed or further developed by virtue of their rights to access and use. Users receive this right first from the participation component of the right to take part in cultural rights, which explicitly provides for the right to “share” cultural knowledge and expressions with others.561 Second, they receive it from the “contribution to cultural life” component, which gives everyone the right “to be involved in creating the spiritual, material, intellectual and emotional expressions of the community”562 and “to take part in the development of the community to which a person belongs.”563 The right to share complements and facilitates the rights to access and use intellectual works. It corresponds to people’s tendency to share knowledge given its non-rival nature.564 It asserts the fact that “access to information and knowledge sharing are regarded as essential elements in fostering innovation and creativity in the information economy.”565 And it normatively promotes new socio-economic models for knowledge production, such as “common-based peer production,”566 and knowledge sharing, such as in free software567 and Creative Commons (CC) licensing.568 Such models have come as a reaction to the dissatisfaction with the exclusive-rights approach toward intellectual works, which emphasizes rights holders’ control and discourages knowledge sharing.569 They facilitate the sharing and distribution of intellectual works,570 thus giving effect to new paradigms viewing intellectual works and knowledge generally as a “commons—a resource shared by a group of people that is subject to social dilemmas.”571

Users’ rights to access, use, and share intellectual works in international human rights law are important pillars in the architecture of “free culture.”572 Under this concept, coined by Lessig, culture and its development are free from the strict control of the cultural industry,573 free from the requirement of permissions before accessing, using, and sharing its elements,574 and free in that individuals can “add or mix as they see fit”575 in building upon intellectual works.576 Free culture uses the tools of copyright and contract law to implement the said freedoms. At the same time, users’ rights in culture, arts, and science can provide those freedoms with a more important normative ground. This ground is necessary, given some scholars’ concern that open content models may negatively impact the economic interests of copyright collective societies to an extent causing a tension between those societies and authors to the detriment of the human rights of both authors and users.577 The success of knowledge access, production, and sharing models, such as GPL licenses, Creative Commons, and Wikipedia, indicates that a significant number of authors, whether writers, musicians, or software programmers, believe that the respect of their moral and material interests, even when in the form of exclusive rights, does not necessarily require upsetting users’ rights in culture, arts, and science.578 By the same token, users’ rights in culture, arts, and science do not necessarily result in depriving authors of their moral and material interests. Authors can still benefit from these interests while users enjoy fair levels of access, use, and sharing of intellectual works.579

The last bit (emphasis added) is a true observation, but that’s where it ends, and that’s really unfortunate. Commons-favoring reform furthers human rights (and freedom, equality, and security generally), is feasible, and sustainable. It can be taken in small steps and re-shapes the knowledge [political] economy and imagination as it goes. In contrast, reforming copyright directly, let alone at the international level, in a way that furthers human rights, is nearly impossible given current arrangements, ideologies, and interests.

There’s lots to follow up on here, including:

  • Detailing relationship of commons-based production and commons-favoring reform with international human rights agreements and jurisprudence
  • Critiquing Al-Sharieh’s human rights reformulation of copyright “balance” (and a canonical critique of “balance”; I’ve made offhanded ones numerous times) and I found Al-Sharieh’s work while browsing citations to Burn Berne: Why the Leading International Copyright Convention Must Be Repealed which argues that purported balance of or possibility of balancing copyright between owners and users does not work and is theoretically incoherent and nonapplicable given power inequality between corporate owners in rich countries and users in poor countries
  • Digesting arguments focused on users’ rights to culture and science, eg the author of the excellent Copyright and Inequality has papers on exactly that topic.