Right to culture and copyright: Participation and access

Abstract

In its process of expansion and increasing international standardization, intellectual property (IP) law has repeatedly entered into conflict with a plethora of international human rights. Yet, while clashes such as those between patents and the right to health, or copyright and freedom of expression have given rise to numerous scholarly interventions and advocacy initiatives, the impact of IP rights on access to and participation in cultural life has long been neglected. This situation has changed in the last two decades, due to the detrimental effects of new digital copyright rules on the creation and sharing of cultural and scientific products. The spotlight has turned towards the privatization of public domain and the severe limitations imposed by the new regulatory framework to access to knowledge and participation in cultural life. Several authors have pointed out the need to proceed with copyright reform in order to restore a proper balance between authors’ private interests, individual human rights and public needs, and proposed different solutions to tackle their negative interactions. However, and in spite of the frequent recourse to human rights arguments, few contributions ground their theories on the states’ international legal obligations under international human rights instruments.This paper constitutes an attempt to fill this gap. After a brief overview of the reasons of the oblivion surrounding cultural rights (§1) and of the most eloquent examples of their clashes with IP rights (§ 2), the chapter sketches the legislative framework related to access to and participation in cultural life, focusing on Article 15 ICESCR and its interpretation, as provided by the CESCR General Comments n.17 and n.21 (§3). Then, in an effort to remedy the Comments’ silence and omissions as to the relationship between its three rights – and particularly between the right to take part in cultural life (Article 15(1)(a)) and IP rights (Article 15(1)(c)) – it translates the indications of General Comment n.21 on Article 15(1)(a) into the language of IP law, providing examples of measures that states may be requested to implement in the field of copyright in order to comply with their obligations to respect, protect and fulfill the right to culture. In this context, a multi-level approach to state obligations, involving in their compliance not only legislators but also courts, is deemed necessary to effectively incorporate human rights in the copyright discourse and, in the long run, to reach that stable copyright balance which got lost in the headlong rush of the international IP standardization (§4).