ARTICLE 19 delivered the following oral statement to the 28th Session of the UN Human Rights Council:
ARTICLE 19 welcomes the report of Farida Shaheed, the Special Rapporteur in the field of cultural rights, and congratulates her at the conclusion of her six year mandate.
The report provides an important human rights based analysis of the issue of copyright, which is overdue and appropriate for this forum to address. Freedom of expression is an essential part of the right to participate freely in the cultural life of society, enjoying the arts and sharing in scientific advancement: the very benefits that copyright exists to promote.
However, as you observe, we increasingly see the right to freedom of expression being eroded on the grounds of protecting copyright. While digital technologies have greatly enhanced freedom of expression and cultural diversity, the Internet has also been at the centre of an disturbing proliferation of copyright claims at the expense of freedom of expression.
We share your concern that international policy making on copyright suffers a “democratic deficit”, where corporate interests are represented but civil society and users excluded. Treaties and trade agreements must be compliant with States’ international human rights obligations, and any policy making in this regard must be transparent, participatory and evidence based.
We agree that internet disconnection as a response to copyright infringement presents serious problems, and regard this as a disproportionate restriction on freedom of expression. Website blocking, considering the danger of over-blocking and the general ineffectiveness of this measure, is also likely to be disproportionate.
Criminal sanctions for non-commercial copyright infringement have a significant chilling effect on the sharing of culture and are a disproportionate restriction on freedom of expression. We recommend the abolition of criminal liability in this regard. States should also enact measures to penalise abusive claims of copyright in civil law, and ensure that in appropriate cases, civil damages should be compensatory based on actual damage suffered.
We welcome the focus given in the report to the importance of positive measures to promote access to culture, in particular among disadvantaged groups, to create and expand the public domain. In addition to the broad interpretation of copyright exceptions, innovative licensing regimes such as “creative commons” should be encouraged.
In conclusion, we reiterate your recommendation that States carry out impact assessments to determine the effect of copyright regimes on the protection of fundamental rights, in particular freedom of expression. We welcome your reference to ARTICLE 19’s “right to share” principles, and urge States to use these principles to guide their rights-based impact assessments.