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

Saleh Al-Sharieh

doi:10.5334/ujiel.233

Abstract

<p class="p1">States parties to international copyright instruments are required to give effect to their obligations under international copyright law and fulfil 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 conclusion 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, different 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.

Highlights

International human rights law has specific requirements for the protection of authors and users of intellectual works
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 interests’[9] in intellectual works is ‘one familiar to intellectual property law’[10] and ‘there is a degree of compatibility between Article 15 [of the ICESCR] and traditional [intellectual property] systems’
The paper is divided into five parts: Part II outlines the different human rights approaches to intellectual property law; Part III reveals the ambiguity of the principle of balance in international copyright law; Part IV presents the human rights principle of balance; and Part V is a conclusion

Summary

Introduction

International human rights law has specific requirements for the protection of authors and users of intellectual 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). 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. The paper is divided into five parts: Part II outlines the different human rights approaches to intellectual property law; Part III reveals the ambiguity of the principle of balance in international copyright law; Part IV presents the human rights principle of balance; and Part V is a conclusion

International Human Rights and Intellectual Property

Balance in International Copyright Law

The Types of Balance

The Rules of Balance Implementation

Conclusion