Freedom Of Artistic Expression Research Articles

The forgotten creator: Towards a statutory remuneration right for machine learning of generative AI

Generative AI is disrupting the creative process(es) of intellectual works on an unparalleled scale. Algorithmic tools are increasing users’ production capacity for literary and artistic works to almost infinite levels. However, the quality of the outputs is strictly dependent on the quantity and quality of the inputs, some of which are protected by copyright. This scenario gave raise to tensions between copyright holders and generative AI companies. While the formers claim control over this new kind of exploitation of their works, the latters wish to train their algorithms freely with as many contents as possible. This contribution suggests exploring the idea of introducing a statutory license for machine learning purposes as a compromise solution to ensure an attractive environment for artificial intelligence without marginalizing the role played by human authors. This remuneration proposal is rooted in a fundamental rights analysis that balances i.e., the right to science and culture and freedom of artistic expression (Arts. 11 and 13 EUCF, 19 UDHR, 27.1 UDHR, 15.1 a and b ICESCR) vis-à-vis the right for creators to benefit from the protection of the moral and material interests resulting from their scientific, literary or artistic production (Arts. 17.2 EUCF, 27.2 UDHR, and 15.1 c ICESCR).

Iran's Cinema of Resistance

Iran's Cinema of Resistance Hanna Khosravi (bio) Click for larger view View full resolution Nasrin Sotoudeh in a still from Jafar Panahi's Taxi (International Federation for Human Rights/Flickr) [End Page 6] About halfway through Jafar Panahi's Taxi (2015), the Iranian filmmaker picks up his young niece, Hana, from her elementary school. Hana has just been tasked with producing a film for class, and she is eager to seek her uncle's guidance. Who better to ask than an internationally renowned writer and director? Hana tells Panahi that her school, which is under the jurisdiction of the Islamic regime's so-called morality police, has banned what the government refers to as "sordid realism" in any of the student productions. The legal term for this censored cinematic art form is translated from the Farsi (phonetically anglicized as seeyah namaee), which literally means "representing something darkly." Hana tells Panahi that her teacher instructed the students to "show what is real, but not what is real real. Then [the teacher] said if reality is dark and unpleasant, not to show it. . . . They don't want to show it, but they do it themselves." She pauses, seemingly unaware of the harrowing truth that she has just laid bare, then adds, "Whatever. I don't get it." The scene's striking dialogue uses the neorealist motif of framing social and political inquiries through the innocent, prying eyes of a child. Panahi—a dissident, a political prisoner, an artist—has dedicated his life to an illicit art form. Like many of Iran's dissident filmmakers, Panahi centers much of his work around the stories of women. Consider the film that initiated his ongoing struggle against the country's authoritarian regime: The Circle (2000), which was groundbreaking in its bleak, unvarnished depiction of the government's crushing oppression of women. As Roger Ebert wrote in his review, "The film is profoundly dangerous to the status quo in Iran because it asks us to identify with the plight of women who have done nothing wrong except to be female." Like Taxi, The Circle is about the poetics of the everyday. It is an act of unveiling, revealing how Iranian women pursue their own safety and survival. Following his participation in the 2009 Green Movement, Panahi was arrested and convicted of creating "anti-government propaganda." During a three-month stint in Evin Prison—commonly known as Evin University because of the number of intellectuals, journalists, students, and artists who have been imprisoned there—Panahi went on a hunger strike that garnered attention from filmmakers, artists, and activists around the world. Following his release, the government banned Panahi from directing or releasing films for twenty years. Panahi's 2011 documentary chronicling his life under house arrest, aptly titled This Is Not a Film, was smuggled to the Cannes Film Festival on a flash drive concealed within a birthday cake. Recently the repression of artists has gotten worse. Last May, more than a dozen documentary filmmakers were arrested or had their homes raided when [End Page 7] the ultraconservative administration of President Ebrahim Raisi conducted the most severe crackdown on artistic freedom of expression that Iran had seen in many years. Two months later, Panahi was arrested after going to a prosecutor's office in Tehran to pursue answers regarding the imprisonment of his friend Mohammad Rasoulof, who was arrested in July after posting a statement on social media urging the regime's security forces to lay down their weapons against anti-government protesters in Iran's Khuzestan province. Like Panahi's Taxi, Rasoulof's 2020 film There Is No Evil, which tells four interwoven stories of Iranians whose lives have been affected by the systemic corruption and injustice of the country's capital punishment laws, won the prestigious Golden Bear award at the Berlin International Film Festival. Also like Panahi, Rasoulof was banned from leaving the country and was unable to attend the festival and receive his prize. On July 19, Panahi, too, was sentenced to six years in Evin Prison. Since September, thousands of Iranians have been imprisoned in Evin for participating in the uprising that has convulsed Iran and much of the Kurdistan region...

Robustness Check: Evaluating and Strengthening Artistic Use Defences in EU Trademark Law

AbstractThe 2015 EU trademark law reform introduced a peculiar rule for reconciling trademark rights with freedom of artistic expression. According to Recital 21 EUTMR and Recital 27 TMD, artistic use can be deemed fair as long as the artist ensures compliance with “honest practices in industrial and commercial matters”. The honest practices proviso forges a link with the provisions on limitations of trademark rights. Article 14(1) EUTMR and Art. 14(1) TMD exempt from the control of trademark proprietors several types of use that can allow for artistic use. All these limitations, however, apply only when the use satisfies the test of honest practices. Confirming the obligation to comply with honest practices in industrial and commercial matters, the fairness rule of Recital 21 EUTMR and Recital 27 TMD turns out to be a double-edged sword. Instead of readily immunizing artistic use against trademark claims, it obliges artists to rely on limitations of trademark rights and furnish corresponding proof. Moreover, artists are expected to align their artistic activity with behavioural standards in the field of industry and commerce – a realm that is alien to the artistic community. Evidently, this approach endangers artistic autonomy. To avoid detrimental effects on artistic expression, it is advisable to strengthen the position of artists and develop a legal solution that resembles the measures taken in Art. 9(3)(f) EUTMR and Art. 10(3)(f) TMD with regard to freedom of commercial expression. Drawing inspiration from cultural sciences and case law on both sides of the Atlantic, the analysis explores avenues for achieving this goal.

Załamanie kariery artystycznej Miry Kubasińskiej

Mira Kubasińka (1944–2005) was one of the most charismatic vocalists of the Polish pop-music scene in the 1960s and 1970s. She achieved great success with the Breakout group and the status of a big-beat music star in Poland. Kubasińska’s unquestionable assets were naturalness and freedom of artistic expression. She had interesting vocal qualities, an impeccable sense of rhythm and a rare ability to shape the musical phrase. The pieces she performed were emotionally charged and stressed her extraordinary interpretative skills. The most important achievements of Kubasińska are the albums released in the peak period of the Breakout’s activity, that is, in the years 1969–1973, especially the album “Fire” (Muza Records 1973). After that Kubasińska's career declined sharply, which was caused by various factors, including primarily a severe crisis and finally the breakdown of her marriage with Nalepa, which had fatal consequences in the form of growing alcohol addiction, depression, and permanent material problems. Over the next decade, Kubasińska performed rarely. In 1994, she tried to make a permanent comeback to the stage with the band After Blues. From 2003 she collaborated with the blues-rock group KG Band which was ended by her sudden death in 2005. As far as artistic values are concerned, Kubasińska's later activity was only a shadow of her former achievements with the Breakout. This text, which is a contributory biographical sketch, focuses primarily on the factors and circumstances that led to the collapse of one of the most brilliant careers of the Polish big-beat era.

Freedom of artistic expression in the ambit of Article 19, with special reference to communal disharmony

Freedom of artistic expression in the ambit of Article 19, with special reference to communal disharmony

Literatura (nie)pokonana przez ideologię. Michaiła Bułhakowa sąd nad Rosją i zemsta na Stalinie w Mistrzu i Małgorzacie

One of the special focuses of law and literature is law on literature. This examines how various issues connected with literature are regulated by law. This article addresses the issue of the intervention of the state in artistic freedom of expression, drawing on the situation of the artist in the totalitarian state that was the Soviet Union. In Stalinist Russia, artists were not only imprisoned or condemned to death, but they were also subjected to various forms of pressure. Ultimately, the greatest problem for many of them was the imprisonment of human thought (what Czesław Miłosz called “the captive mind”). Mikhail Bulgakov was a writer who did not give in. He spent twelve years, up to his death, working on The Master and Margarita, in which he tried to settle accounts with the Soviet system and its ideology, while simultaneously coming to terms with Stalin personally. Bulgakov’s history and that of his most important work open up a rich field for analysis of how in a totalitarian state various procedures were employed to legitimize the interference of the state in literature. Such steps included: decrees suspending freedom of the press and introducing censorship; creating institutions that aimed to monitor the ideological correctness of literature; and producing an index of forbidden books and lists of enemies of the state. The article presents an artist who, against this background, did not allow literature to be defeated by ideology.

Artistic expression: freedom or curse?

The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation are salient to the fact that the ECtHR has consistently provided a lesser level of protection to artistic expression than to political expression. The aim of this article is to challenge the approach of the Court to the freedom of artistic expression in relation to visual and performance arts. The critical evaluation is based on two different but complementary grounds: contemporary theory of art critique of the ECtHR’s understanding of art and critique based on the ECtHR’s own political freedom of expression cases. The argument of the authors is that the ECtHR approach to visual and performance arts as an exercise in ethics and aesthetics is contradicted by contemporary art theory and practice which invariably assumes the societal role of art, its potential subversive and transformative function within a society at large, and, ultimately, its lato sensu political value. In addition, visual and performance arts are powerful yet fragile instruments for delivering the debate to society at large. Viewed from this perspective, artistic expression has the same beneficial effect on a democratic society as political expression stricto sensu. Therefore, the rationales underpinning protection of political expression are essentially the same as those of artistic expression, therefore the ECtHR should extend the same level of legal protection to arts and artists to keep valuable social dialogue alive.

A Measure of Happiness—The Use of Live Animals in Contemporary Art Installations

The deployment of living creatures for the purposes of contemporary art installations can be controversial. The debate centres on the unsettling convergence of freedom of artistic expression and the rights of other non-human animals—two moral principles that have high social value. This paper examines the legislative and formalised frameworks in Australia that relate to the use and welfare of live animals on display in contemporary art presentations, with a particular focus on the display of live birds and a case study of the contemporary art installation, Céleste Boursier-Mougenot, from here to ear (vol. 13) 2010. Examples of recent contemporary art installations and presentations that use live animals and the subsequent public reactions and host organisation responses are used to illustrate this controversial artform. The paper contends that there is an imperative for host organisations to build defensible positions on the use of live animals in art, via ethical frameworks supported by research and due diligence, to ensure good animal welfare and care. This process also helps to clarify what could be considered justifiable use of live animals, demonstrating the ethics and moral value of artistic endeavours.

Freedom of artistic expression in the ambit of Article 19, with special reference to communal disharmony

Freedom of artistic expression in the ambit of Article 19, with special reference to communal disharmony

'Fair Use' through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, although long contested, such an approach is now mandated by EU primary law, thus “flexibilizing” significantly the legal framework in this area. It then examines the balancing act between fundamental rights and copyright, with particular attention paid to the weight the judiciary should afford freedom of artistic expression versus copyright law in cases of creative appropriation, in order to comply with the obligations resulting from European, national, and international human rights provisions. Finally, the chapter concludes with a discussion and evaluation of the growing need for legislative reform to render freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works.

Street Photography and the Right to Privacy. The Tension Between Freedom of Artistic Expression and an Individual's Right to Privacy in the USA

Street Photography and the Right to Privacy. The Tension Between Freedom of Artistic Expression and an Individual's Right to Privacy in the USA

Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights

The way that art is judged in courtroom shapes way it is perceived at large and has a direct consequence on how it can be appreciated by society. Surely, not all art is to everybody's liking. Even judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In recent Sinkova v. Ukraine case, a divided Fourth Section of European Court of Human Rights ruled that applicant's conviction for an artistic performance featuring applicant frying eggs over Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting memory of soldiers from insult, outweighs applicants right to free expression. The artistic nature of applicant's actions is ignored by ECtHR and in absence of an explanatory context, performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on significance ECtHR attaches to protection of artistic expression and ways in which it regulates dynamics between artistic freedom and public morals. A cursory review of relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against need to protect public morals, or the rights of others, ECtHR favors latter.

Zakres swobody artystycznej we Francji – wybrane aspekty

W opracowaniu podjęto próbę analizy normatywnego kształtu granic wolności twórczości artystycznej we Francji. Z uwagi na to, że Francja odpokoleń uchodzi za kolebkę kultury i sztuki, ukazano zakres ingerencji prawa karnego w powszechnie uznaną wolność twórczości artystycznej – właśnie na przykładzie tego państwa. W artykule zwrócono również uwagę, iż kult wolności i kreatywności opanował rynek sztuki, przyczyniając się dopowstania sporów interpretacyjnych w orzecznictwie i doktrynie. Ilość procesów przeciwko artystom stanowi dowód na to, że jednak pewien zakres cenzury we Francji wciąż istnieje. Liczne skandale, procesy ożywiają debatę wokół wolności twórczości artystycznej. Autorka omówiła charakterystykęwybranych przestępstw popełnionych z przekroczeniem wolności artystycznej, wskazując na zasady odpowiedzialności karnej. W opracowaniu omówiono zakres swobody artystycznej we Francji w aspekcie ochrony praw autorskich i pokrewnych, swobody wypowiedzi, a także w zakresie swobody artystycznego wyrazu w kinematografii i teatrze.

Dignifying, Restoring, and Reimagining International Law and Justice Through Connections with Arts and Culture

This symposium provides a critical opportunity for international legal scholars to engage with the value and power of certain aspects of culture. The successive holders of the UN mandate on cultural rights have declined to define culture, instead taking a holistic, inclusive approach to its meanings, including inter alia diverse forms of artistic and cultural expressions, languages, worldviews, practices, and cultural heritage. Cultural rights—including the right to take part in cultural life without discrimination, the right to access and enjoy cultural heritage, and freedom of artistic expression—are a core part of the universal human rights framework. They are vital in and of themselves and protect key aspects of the human experience, but they have also been increasingly recognized as important elements of accessing justice and responding to atrocities and as “fundamental to creating and maintaining peaceful and just societies and to promoting enjoyment of other universal human rights.” The artistic and cultural expressions which result from the exercise of these rights likewise have inherent value and can also play significant roles in achieving basic goals of international law and human rights. As I noted in a report to the UN Human Rights Council in my capacity as UN Special Rapporteur in the field of cultural rights:Humanity dignifies, restores and reimagines itself through creating, performing, preserving and revising its cultural and artistic life . . . . Cultural heritage, cultural practices and the arts are resources for marshalling attention to urgent concerns, addressing conflicts, reconciling former enemies, resisting oppression, memorializing the past, and imagining and giving substance to a more rights-friendly future.

“Fair Use” through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations

“Fair Use” through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations

L’art pour l’art, czyli o tzw. kontratypie sztuki

L’art pour l’art, or so-called justifications of art The issue of so-called justification of art continues to be debated intensely in the applicable literature. Academic opinion increasingly highlights the need to include international and constitutional regulations regarding freedom of expression, particularly freedom of artistic expression, in the discourse. This article adopts a somewhat different approach and aims to analyze that non-statutory justification in the context of statements by critics, art historians, artists and lawyers. This type of approach makes it possible to assess whether the conditions excluding the unlawfulness of an act proposed in the science of criminal law are useful tools to facilitate the criminal law evaluation of specific factual circumstances by a judge.

An Examination of the Legislative Limitations of Artistic Freedom of Expression in Uganda

Abstract Artistic freedom of expression is guaranteed under the 1995 Constitution of the Republic of Uganda and other international instruments. This paper examines its application in all forms of art including paintings, music, poetry, novels, and plays. The paper examines the different legislation used in the restriction of artistic freedom of expression. It argues that these restrictions are contrary to the guarantees of freedom of expression provided in the Constitution and in various regional and international instruments. Part I of this paper gives a historical background to artistic freedom of expression noting how it has been suppressed since colonial times. Part II examines international protection of artistic freedom of expression while Part III analyses the protection of artistic freedom of expression in Uganda as guaranteed by the Constitution. Part IV analyses the legislation limiting artistic freedom of expression and highlights how these are incompatible with international and local human rights standards. Part V puts forward the case for artistic freedom of expression. Finally, Part VI provides the conclusion.

FREEDOM OF THE MEDIA IN A DEMOCRATIC STATE

The aim of the article is to study what is media freedom; in particular, should the freedom of the media be undermined in the realities of independent states at all. In order to be able to take any consideration in the mentioned matter, we should first answer the question to what media freedom we refer to. We can understand it as the freedom of specific institutions or individuals involved in media activities. We can also understand it broadly as freedom to reject or accept any restrictions of a philosophical, ideological, moral or religious nature. The research methodology consists in using such methods as study, analysis and generalization with the purpose of discussion about media freedom should start with the realization that it is closely related to the general, philosophical discussion about the criteria of freedom and is exposed not only to limitations, but also to abuse. All mentioned areas are interrelated in a certain way – the freedom of the individual involved in the media depends on the principles of the freedom of the institution with which he is bound. Freedom of institutions leads to freedom of the media in general, freedom of artistic expression, and finally freedom of speech. It is impossible to talk about freedom, including freedom of the media, without considering the value systems adopted in a particular state, social environment or a specific structure. In many place sit differs significantly, what creates the need to formulate some general ethical principles that would allow to distinguish necessary from unauthorized interference in the independence of media.

Folk Art and Fine Art from the Puerto Rican Diaspora: Individuation, Cultural Preservation, and Resistance

Puerto Ricans in north Philadelphia experience marginalization in the larger culture, but also incorporation into the multiple ethnicities that have historically made up Puerto Rican identity. Both of these experiences are reflected in the art of Taller Puertorriqueño, an arts education program for children and youth in the area. Taller permits social and cultural mobility as well as freedom of artistic expression by constantly pushing boundaries, allowing students to represent more authentic reflections of their values as a means of dealing with cultural ambiguity. In addition, they rewrite their oppressive history by leveraging human and cultural values embedded in their artistic language. Taller is a mission-oriented institution that uses art for social transformation in the community and for celebrating a fluid ethnic and social identity. Though not a religious institution, Taller’s art reflects the religious commitments of the Puerto Rican community, enacts the liturgy of art in ways that contribute to God’s transformative kingdom, and thereby helps to promote good stewardship throughout the community.

The Ethics of Art Therapy: Promoting Creativity as a Force for Positive Change

ABSTRACTThe 2013 revision of the Ethical Principles for Art Therapists added creativity as a core value underlying the profession. At the same time, the ethical principles also included a nondiscrimination clause to protect the interests of nonnormative clients. In this article I explore creativity as a basic human right, promoted through freedom of artistic expression with clients to promote positive change. Creativity is viewed as a guiding principle to provide an outlet for expression, self-understanding, and transformation for those otherwise marginalized.