[bestbits] What is civil society's position on copyright in Internet governance?

[Norbert Bollow]

Jeremy Malcolm <Jeremy at Malcolm.id.au> wrote:
> Anriette Esterhuysen <anriette at apc.org> wrote:
> 
> > The deadlock was broken by us using text that was suggested, or
> > proposed by Jeremy Malcolm on the second day. I can't remember
> > exactly what Jeremy had said, but is input implied that some
> > protection for authors would be acceptable.
> 
> I lost my verbatim note of what I said due to a crash, but from
> Pranesh's log of the transcript (at
> https://prakash.im/text-netmundial-day1.html) here it is as delivered:
> 
> [...] THAT DOES, HOWEVER, RAISE THE SECONDARY POINT OF WHETHER IP
> RIGHTS SHOULD BE ADDED TO THE LIST OF HUMAN RIGHTS, AS SOME HAVE
> CONTENDED. AGAIN, I DON'T SEE HOW THAT IS NECESSARY BECAUSE THE LIST
> OF RIGHTS IS ALREADY EXPLICITLY NONEXCLUSIVE, AND NOTHING THAT WE
> AGREE AT NETmundial CAN DETRACT FROM WHAT'S ALREADY IN THE UDHR. SO I
> WOULD OPPOSE ADDING A POINT ON IP, BUT IF ONE WAS ADDED NEVERTHELESS
> IT WOULD, AT THE VERY LEAST, BE NECESSARY TO QUALIFY IT TO REFLECT
> THE NEED TO BALANCE PRIVATE IP RIGHTS WITH THE BROADER PUBLIC
> INTEREST.

Having been a remote participant, I recall being quite shocked at that
point.

Copyrights are not among the human rights!!!

In practice they are mainly rights of corporations, of what is called
the “copyright industry”.

It is true, as Jeremy noted later in his intervention, that there is a
human right 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” and that, as Jeremy
also noted, this is balanced in the UDHR and in the International
Covenant on Economic, Social and Cultural Rights by the statement on a
complementary right to take part in cultural life.

Human rights can be balanced and limited by what is implied by other
human rights. They cannot be balanced and limited by rights of
corporations, no matter how strongly established such rights may be in
international law, and no matter how well-funded the lobbying drive
behind the continuous process of expanding and strengthening those
rights is. The human right to protection of “the material interests of
authors” according to article 27 of the UDHR and according to article
15 of the International Covenant on Economic, Social and Cultural
Rights says that it is a human right that there must a regime that
protects the interests of authors against unfair commercial
exploitation of their work. This does not imply that this regime must
be of the type of today's copyright system. And it certainly does not
elevate any rights of corporation to the level of human rights.

One area in which overzealous legal protection for rights of copyright
holders can easily result in the violation of human rights is in the
context of so-called “technical protection measures”. If there is a law
against the circumvention of “technical protection measures” which
makes it illegal to e.g. quote a sentence from a document to which a
copyright holder has applied “technical protection measures”, in order
to convey the information about someone having made such and such a
statement, then that law is a human rights violation. And I would argue
that circumventing the “technical protection measures” and conveying
the information is legal despite the law that states the opposite.
International human rights law trumps any other type of law.

An even more dangerous area where we're going to lose significant
ground if we allow copyright industry interests to “balance” human
rights is privacy protection. If copyright gets elevated in importance
to a level comparable to that of human rights, then it will follow
logically that some compromises on privacy are reasonable and
proportionate in order to allow copyright holders to combat “piracy”
more effectively.

I of course believe that no one in the drafting group had any
intentions to create such problems, and that nothing was intended
besides a restatement of the exiting legal situation, with a goal to
avoid the risk of a certain type of misunderstandings.

However, if going forward, the NetMundial outcome document ends up being
taken serious, I expect this to be a part of the text that does
significant harm, through muddying the water. Human rights can only be
effective to the extent that they are clearly understood, and only when
it is clearly understood that they trump other kinds of laws.

> There was no plan to produce a text, consensus or otherwise, out of
> the pre-meeting.  This was something that happened spontaneously
> because some of the organisers decided to do it.

In my view, something went really really seriously wrong there, and I'd
be very interested in some kind of careful post mortem analysis of what
exactly happened.

I'd also like to know how it came to pass that apparently no one in the
drafting group had an in depth understanding of human rights.

Greetings,
Norbert
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