Toward a Human Rights Method for Measuring International Copyright Law's Compliance with International Human Rights Law

• Author: Saleh Al-Sharieh
• Position: Researcher, European Technology Law and Human Rights Division, Department of European and Economic Law, University of Groningen (the Netherlands)
• Pages: 5-26

Saleh Al-Sharieh, ‘Toward a Human Rights Method for Measuring International

Copyright Law’s Compliance with International Human Rights Law’ (2016)

32(82) Utrecht Journal of International and European Law 5, DOI: http://dx.doi.

org/10.5334/ujiel.233

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

W

RESEARCH ARTICLE

Toward a Human Rights Method for Measuring

International Copyright Law’s Compliance with

International Human Rights Law

Saleh Al-Sharieh*

States parties to international copyright instruments are required to give eect to their obli-

gations under international copyright law and full their international human rights obligations

with respect to striking a balance between the human rights of the authors of intellectual

works and human rights of the users of those same works. The High Commissioner of Human

Rights has concluded that such balance ‘is one familiar to intellectual property law’. This con-

clusion assumes that international copyright law is already compliant with international human

rights law. However, international copyright law instruments are not clear about how to reach

an appropriate balance between these rights and, as a result, dierent stakeholders in the

international copyright community seek and defend varied versions of balance which are not

necessarily consistent. Concurrently, international human rights law bodies and scholars have

examined the human rights of authors and users of intellectual works through a copyright law

lens, missing a chance to articulate a clear human rights principle of balance. A proper human

rights balance between authors’ and users’ human rights recognises the limited nature of both

sets of human rights, rejects any hierarchy between them, and interprets them in conformity

with the notion of the interdependence and indivisibility of human rights.

Keywords: Human Rights; Intellectual Property; Copyright; TRIPS; Compliance

I. Introduction

International human rights law has specific requirements for the protection of authors and users of intel-

lectual works. Article 27 of the Universal Declaration of Human Rights (UDHR)1 and Article 15(1) of the

International Covenant on Economic, Social and Cultural Rights (ICESCR)2 protect ‘the moral and material

interests’3 of authors (hereinafter authors’ moral and material interests) and the human rights of individuals

to ‘participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement

and its benefits’4 (hereinafter users’ rights in culture, arts and science). Furthermore, by virtue of the inter-

dependence and indivisibility of human rights,5 authors can derive protection from other human rights and

freedoms, such as the right to freedom of expression and the right to property.6 Likewise, users can support

* Researcher, European Technology Law and Human Rights Division, Department of European and Economic Law, University of

Groningen (the Netherlands).

1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR).

2 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976)

993 UNTS 3 (ICESCR).

3 UDHR, art 27(2); ICESCR, art 15(1)(c).

4 UDHR, art 27(1); ICESCR, art 15(1)(a)-(b).

5 See World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (12 July 1993) UN Doc A/CONF.157/23

(Vienna Declaration), para 5.

6 Hereinafter, authors’ moral and material interests in Article 27(2) of the UDHR and in Article 15(1)(c) of the ICESCR as well as

authors’ claims to protect these interests under the human rights to freedom of expression and property are collectively referred to

as ‘authors’ human rights’. For a discussion of the content of authors’ rights in international human rights law, see United Nations

(UN) Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 17 (2005): The Right of Everyone to Ben-

efit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which

Toward a Human Rights Method for Measuring International Copyright Law’s

Compliance with International Human Rights Law

6

their rights to access, use and share intellectual works by relying on their freedom of expression and their

human right to education.7

Given the indivisibility and interdependence of human rights, the human rights of authors and users are

presumed to be compatible as codified in international human rights instruments. Nonetheless, the practice

of these rights by individuals, their implementation by parliaments, and/or their adjudication by courts may

result in one (or more) of these rights intruding on the other(s). In this case, international human rights law

posits balance as the solution for managing the relationship between authors’ and users’ human rights, and

between these two sets of rights and the whole body of international human rights. In General Comment

No. 17, the Committee on Economic, Social and Cultural Rights (CESCR) has explained that authors’ inter-

national human rights ‘must be balanced’ with the other international human rights recognised in the

ICESCR, including users’ international human rights.8 Also, the High Commissioner of Human Rights has

relied on the temporary nature of intellectual property rights and their traditional utilitarian justifications

to conclude that the balance that international human rights law strikes ‘between public and private inter-

ests’9 in intellectual works is ‘one familiar to intellectual property law’10 and thus ‘there is a degree of com-

patibility between Article 15 [of the ICESCR] and traditional [intellectual property] systems’.11 The High

Commissioner has emphasised the role that balance, as an objective of the Agreement on Trade-Related

Aspects of Intellectual Property Rights12 (TRIPS), plays in establishing a ‘potential link’13 between TRIPS and

international human rights law.14 Yet, the High Commissioner has also identified a number of points in

TRIPS that are a source of concern from an international human rights law perspective.15

The High Commissioner’s reliance on the international copyright law’s principle of balance to issue a

decree of coexistence between international copyright law and international human rights law is problem-

atic. The principle of balance in international copyright law is not as self-evident as generally perceived. It

is ambiguous and is far from being agreed upon as satisfactory within international copyright law, making

it a poor candidate to be imported as a viable peacemaker between the two regimes. Second, the High

Commissioner has not articulated an independent human rights principle of balance—with clear rules—that

can contribute to managing the multifaceted and interrelated tensions resulting from the interplay between

authors’ and users’ human rights and which can act as point of reference against which international copy-

right law can measure its compliance with international human rights norms.

The purpose of this paper is to unfold the complexity surrounding the meaning of balance in international

copyright law and present the principle of balance in international human rights law. This should inform a

new debate with respect to how to measure the compliance of international copyright law with international

He or She Is the Author (Article 15, Paragraph 1(C), of the Covenant’ (12 January 2006) UN Doc E/C.12/GC/17 (General Comment

No. 17). General Comments are:

‘[A] means by which a UN human rights expert committee distils its considered views on an issue which arises out of the

provisions of the treaty, whose implementation it supervises and presents those views in the context of a formal statement

of its understanding to which it attaches major importance.’

Philip Alston, ‘The Historical Origins of “General Comments” in Human Rights Law’ in L Boisson de Chazournes and V Gowland

(eds), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (Martinus Nijhoff 2001)

764. There is a disagreement on their legal weight, which Professor Philip Alston summarises as follows:

[There are views] that seek to portray them as authoritative interpretations of the relevant treaty norms, through others

that see them as a de facto equivalent of advisory opinions which are to be treated with seriousness but no more, to highly

critical approaches that classify them as broad, unsystematic statements which are not always well founded, and are not

deserving of being accorded any particular weight in legal settings. ibid 764.

7 Hereinafter, users’ rights in culture, arts and science in article 27(1) of the UDHR and in article 15(1)(a)-(b) of the ICESCR as well

as users’ claims to protect these rights under the human rights to freedom of expression and education are collectively referred to

as ‘users’ human rights’. For a discussion of the content of users’ human rights, see UNCESCR, ‘General Comment No. 21: Right of

Everyone to Take Part in Cultural Life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’

(21 December 2009) UN Doc E/C.12/GC/21 (General Comment No. 21).

8 General Comment No. 17 (n 6) para 22.

9 UN Commission on Human Rights (UNCHR) (Sub-Commission), ‘The Impact of the Agreement on Trade-Related Aspects of Intellec-

tual Property Rights on Human Rights: Report of the High Commissioner’ (27 June 2001) UN Doc E/CN.4/Sub.2/2001/13 (Report

of the High Commissioner), para 11.

10 ibid.

11 ibid para 12.

12 Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 33

ILM 1144, Annex 1C, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) art 7.

13 Report of the High Commissioner (n 9) para 16.

14 ibid.

15 ibid paras 22–26.