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Are Moral Rights Human Rights? Presentation to BLACA/IPKat seminar 12 February 2014

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Are Moral Rights Human Rights? Presentation to BLACA/IPKat seminar 12 February 2014

  1. 1. Are Moral Rights Human Rights? (and does it matter?) Graham Smith, IP/IT Partner, London @cyberleagle 12 February 2014
  2. 2. Sources of human rights obligations
  3. 3. Sources of human rights obligations ● Universal Declaration of Human Rights (1948) • Non-binding declaration ● European Convention on Human Rights (1952) • Binding treaty • EU and UK domestic law ● International Covenant on Civil and Political Rights (adopted 1966) • Binding treaty ● International Covenant on Economic, Social and Cultural Rights (adopted 1966) • Binding treaty ● EU Charter of Fundamental Rights (2009) • EU law (but UK?) Page 3 © Bird & Bird LLP 2014
  4. 4. Types of human rights obligation
  5. 5. Three main types of human rights obligation Negative 1. Abstain from acts of interference Direct N/A State 2. Obligation to act as between State and individual Positive Page 5 © Bird & Bird LLP 2014 Horizontal 3. Obligation to act to secure rights as between individuals
  6. 6. ECHR Article 1 Protocol 1
  7. 7. Human rights obligations – ECHR A1 P1 Page 7 © Bird & Bird LLP 2014
  8. 8. Human rights obligations – ECHR A1 P1 Art 1 Prot 1 (possessions) Negative obligation (abstention from interference) Implied positive obligation Categorisation: Is there something which qualifies as a possession within A1 P1 autonomous meaning? Interference: Incidents of property? Expectations? Direct Interference by infringement without compensation (Balan v Moldova) ("right recognised by law and by a previous final judgment.") Failure to redeem a government bond (Lobanov v Russia) Bilateral treaty post-dating trade mark application (Anheuser Busch) ("entitled to expect that it would be examined under the applicable legislation.") Direct (quasihorizontal) Page 8 © Bird & Bird LLP 2014 Domestic judicial proceedings; Court action/inaction re claimant's property + interference with defendant's physical possessions (e.g. Levi Strauss v Tesco)
  9. 9. A1 P1: It’s not about designing IP rights Possessions Land, physical goods Assets: constituting a substantive interest protected by A1 P1 Claims: legitimate expectation under settled national law of obtaining an asset Peaceful enjoyment of existing property Enjoyment of the appropriate incidents of property Appropriate remedies Land, lease, shares, bonds, patents, copyright, trade mark applications and registrations, debt, drinks licence, cinema clientele, business goodwill, domain name registrations, telecoms licences, final court/arbitration award, interest in pension scheme Page 9 © Bird & Bird LLP 2014 Expropriation Extinction Shifting the goalposts Incidents of property Judicial process: ECtHR: No A1 P1 interference unless decision arbitrary or otherwise manifestly unreasonable Remedies: E.g. State’s refusal to enforce court orders; not failure to develop remedies. (OBG v UK)
  10. 10. Article 17 EU Charter Article 17 is in 'updated' terms from A1 P1 "Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected." ● Article 52(3): "the meaning and scope of the right are the same as those of the right guaranteed by the ECHR" Page 10 © Bird & Bird LLP 2014
  11. 11. ECHR Article 8
  12. 12. Human rights obligations – ECHR Art 8 Article 8 (private life etc) Negative (abstention from interference) Implied positive (affirmative obligation) Direct State phone tapping, surveillance, court orders (e.g. order to disclose information, including in private litigation). Insecure government database containing personal information? Horizontal (Supplementary) N/A Protect from privacy and reputation violations by others (Not unlimited scope e.g. Mosley v UK) Page 12 © Bird & Bird LLP 2014
  13. 13. Human rights obligations – ECHR Art 8 Positive horizontal obligation • “direct and immediate link” between the measure requested and the applicant’s private life” (Botta) • “prudent approach” (Mosley) (!) • “… although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: • in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life. • These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves.” Page 13 © Bird & Bird LLP 2014
  14. 14. The ever-expanding ECHR Article 8 Reputation “… the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings…. a person's right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life.” (Pfeifer) Moral rights? “ … the intrinsically personal character of every creation of the human mind and the ensuing durable link between creators and their creations. … The Committee stresses the importance of recognizing the value of scientific, literary and artistic productions as expressions of the personality of their creator, and notes that protection of moral interests can be found, although to a varying extent, in most States, regardless of the legal system in force. (ICESCR General Comment 17) But not copyright? Unlike other human rights, the material interests of authors are not directly linked to the personality of the creator” (ICECSR General Comment 17) Page 14 © Bird & Bird LLP 2014
  15. 15. ECHR Article 10
  16. 16. Human rights obligations – ECHR Art 10 Article 10 (freedom of expression) Negative (abstention from interference) Implied positive (affirmative obligation) Direct State censorship; abridgement; court orders, including in private litigation (Barthold – injunction in unfair competition action "clearly an interference by public authority"). Promotion of freedom of expression. (Centro Europa 7 v Italy TV frequencies) Horizontal (Supplementary) N/A Protect from interference by others. (e.g. dismissal from employment (Fuentes Bobo), or violent campaigns (Özgür Gündem), resulting from exercise of right of expression.) Page 16 © Bird & Bird LLP 2014
  17. 17. Does it matter if it is a human right?
  18. 18. When does it matter if it is a human right? Scenario Does it matter if it is a Convention right? Victim of direct state interference with rights (negative or positive) Yes. Either (a) autonomously protected substantive Convention right or (b) a national law interest qualifying as a possession under A1 P1. May include a positive non-horizontal obligation (Lobanov). Failure by state to protect guaranteed rights from interference by others (horizontal) Yes. No basis for complaint to ECtHR unless there is (a) a positive obligation (b) to secure a substantive Convention right (c) to the extent claimed (d) with horizontal effect. e.g. disappointed privacy/defamation plaintiffs Alleged interference with Convention rights of another (horizontal) Proceedings claiming infringement of right (Convention or otherwise) No? Once a Convention right is engaged, both Convention rights and private rights protected by national law are taken into account in the balancing exercise. Art 8: “Necessary … for the protection of the rights and freedoms of others” Art 10: “Necessary… for the protection of the reputation or rights of others’. e.g. copyright or privacy defendant invokes Art 10 Page 18 © Bird & Bird LLP 2014
  19. 19. Balancing National law right Prescribed by law Convention right (if any) Legitimate aim Necessary in a democratic society (Proportionality) Page 19 © Bird & Bird LLP 2014 Engagement Privacy Freedom of expression [Freedom to conduct business]
  20. 20. Moral rights and international human rights
  21. 21. Moral rights and international human rights ● 1948 UDHR Art 27 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) 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. ● 1966 (adoption) ICESCR Art 15(1) … recognize the right of everyone: (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. • But 15(1) “(a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications;” ● 1948 UDHR Art 12 No one shall be subjected to ... attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” ● 1966 (adoption) ICCPR Art 17 “No one shall be subjected to … unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. (and Art 19 – freedom of expression). Page 21 © Bird & Bird LLP 2014
  22. 22. Moral rights and international human rights ● General Comment 17 on ICESCR 15(1)(c) • Reflects Berne Convention “… the Committee considers that “moral interests” in article 15, paragraph 1 (c), include the right of authors to be recognized as the creators of their scientific, literary and artistic productions and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, such productions, which would be prejudicial to their honour and reputation.” • BUT “… it is intrinsically linked to the other rights recognized in article 15 of the Covenant … . The relationship between these rights and article 15, paragraph 1 (c), is at the same time mutually reinforcing and reciprocally limitative.” ● General Comment 21 on ICESCR 15(1)(a) “The Committee also wishes to stress the need to take into consideration existing international human rights standards on limitations that can or cannot be legitimately imposed on rights that are intrinsically linked to the right to take part in cultural life, such as the rights to privacy, to freedom of thought, conscience and religion, to freedom of opinion and expression, to peaceful assembly and to freedom of association.” Page 22 © Bird & Bird LLP 2014
  23. 23. All roads lead to ECHR Article 10 ● If moral rights are required by ICESCR Art 15(1)(c) (protection of moral and material interests) • Reciprocally limited by Art 15(1)(a) • Which is recognised to include freedom of expression • Which is also required by ICCPR Art 19 ● If moral rights are required by ICCPR Art 17 (unlawful attacks on honour and reputation) • Balanced with ICCPR Art 19 ● If moral rights are required by ECHR Art 8 ( respect for private and family life) • Balanced with ECHR Art 10 ● To the extent that moral rights are required by Berne (derogatory action prejudicial to honor or reputation) • States are also bound by ICESCR and ICCPR • Non-conflicting interpretation Page 23 © Bird & Bird LLP 2014
  24. 24. We used to think we can ignore Article 10 "Copyright laws are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed" Sup. Ct. Brennan J. N.Y. Times v United States 1971 Copyright law contains built-in First Amendment accommodations (idea/expression dichotomy and fair use) Sup. Ct. Harper & Row v Nation Enterprises 1985 2000 "Copyright does not lie on the same continuum as, nor is it the antithesis of, freedom of expression." Mance L.J. Hyde Park v Yelland Page 24 © Bird & Bird LLP 2014
  25. 25. But no longer (in Europe) 2001 2011 2013 Page 25 © Bird & Bird LLP 2014 "Thus copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.“ [S171(3) CDPA] Court of Appeal (Lord Phillips) Ashdown v Telegraph Group Ltd "… The protection of the right to intellectual property is indeed enshrined in Article 17(2) of [the EU Charter]. There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. … the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights." CJEU, SABAM v Scarlet Publication of photographs on a fashion website was exercise of freedom of expression and conviction for copyright infringement interfered with that. ECt HR , Donald Ashby.
  26. 26. Integrity right and freedom of expression
  27. 27. Integrity right and freedom of expression the right … not to have his work subjected to derogatory treatment.. “treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than […] and (b)the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director; Page 27 © Bird & Bird LLP 2014
  28. 28. Integrity right and freedom of expression the right … not to have his work subjected to derogatory treatment.. “treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than […] and (b)the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director; Page 28 © Bird & Bird LLP 2014
  29. 29. Integrity right and freedom of expression the right … not to have his work subjected to derogatory treatment.. "Subject a para. “treatment” oftowork 2 of Article 10, [freedom of expression] is applicable not only to “information” or “ideas” that are means any addition to, deletion from or alteration or regarded as inoffensive or as a favourably received to or adaptation of the work, but also to those that offend, matter of indifference, other than […] shock or disturb the State or any sector of the and (b)the treatment of a population. if it work is derogatorySuch are the demands of that pluralism, tolerance and or amounts to distortion broadmindedness without which there mutilation of the work is no democratic society." (Handyside etc) or is otherwise prejudicial to the honour or reputation of the author or director; Page 29 © Bird & Bird LLP 2014
  30. 30. How does the integrity right accommodate Article 10?
  31. 31. Integrity right and freedom of expression Defamation Copyright Injury to reputation Copying, communication to the Derogatory treatment public, issue of copies to the (prejudicial to honour public, etc or reputation) X [Table] Art 10 issue Serious ness Threshold condition Serious harm Integrity right Exception Incidental inclusion X Facts Defence Truth Exception Fair dealing for X purpose of reporting current events (photographs excluded) Opinion Defence Honest opinion Exception Fair dealing for X purposes of criticism or review Jokes, parody etc Scope Exception (forthcomi ng) Parody Public interest Defence Jokes – would reasonable reader take it seriously? Publication on matter of public interest Defence S171(3) + common Common law? law Page 31 © Bird & Bird LLP 2014 Scope?
  32. 32. Thank you Graham Smith @cyberleagle graham.smith@twobirds.com Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses. Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is authorised and regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC4A 1JP. A list of members of Bird & Bird LLP and of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at that address. twobirds.com

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