Do we have the right to access information that is essential to human development? Isn’t it a human right? The short answer is no, although quite a few people think it is. Meanwhile, copyright has a basis in human rights – although nobody thinks so.
There are two levels at which the access to information is addressed by legal frameworks. At the visionary end, there are various international declarations of human rights, with the Universal Declaration of Human Rights (UDHR) at the summit (together with its implementing instruments such as the International Covenant on Economic, Social and Cultural Rights). These declarations have no direct statutory effect, but nevertheless they have a powerful rhetorical and moral impact, and influence the framing of legislation. At the more practical end is a thicket of international and national legislation seeking to convert the ethical and moral conclusions of these declarations into action or (more usually) into barriers to action, following the format of the Ten Commandments: “Thou shalt not…”.
In this posting, I will take a look at the first level of information rights and consider the question: Does the UDHR and its associated covenants grant a right of access to information essential to human development?
Being a robust and legally well-drafted document, the UDHR is admirably ambiguous, ambivalent and even-handed. Little is explicit, lots is implicit: lawyers purr at its loopholes. Here is a gentle examination of the clauses related to an access right (the original text is given in italics, and my comments are given in normal type):
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
The freedoms of thought, conscience and religion are all what I would call “internal rights”, in the sense that they apply to what is going on within a person. Nobody can prevent someone merely thinking freely, having a conscience or believing in a religion. These rights can all be exercised in perfect safety by a silent, uncommunicative human being, without breathing a word about it to anyone.
In this article, the internal rights are complemented by the external right to “manifest” your religion – essentially to speak and write about it.
The freedom to think is not the same as the freedom to access the expression of other people’s thoughts, as manifested in books, films or music. This may be implicit, but this article does not explicitly offer the right to such access.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
This article is often taken to assert an access right, but does it? I think not. Let us take the text to pieces slowly and carefully:
As with Article 18, the right to “freedom of opinion and expression” comprises an internal and external component: “opinion” and “expression”.
- The first of these, the right (or “freedom”) “to hold opinions without interference” is similar to the internal rights in Article 18: nobody can prevent someone merely holding an opinion. It is only when you express your opinions that you can run into trouble.
- So what about the external right of “expression”? The first thing to observe is that, as written, Article 19 surely asserts this right only in relation to opinions. If this interpretation is correct, the “information and ideas” it mentions are restricted to the means by which you express your opinions and learn about the opinions of others.
- Does this include a right to collect information and ideas about non-opinions – things like scientific and other knowledge, for example? It could be argued that the scientific method is actually the expression of opinions about the nature of things. According to Karl Popper, scientific progress involves the falsification of existing, well-formulated, falsifiable theories, which, in the light of new evidence, are superseded by new falsifiable theories. In that case, scientific theory looks very much like a set of opinions with which one can disagree by adducing new facts. However, even if scientific theory can be made to fit this article as “opinion”, the key applications of science and what we call “the evidence base” of essential information – these are surely not “opinion”. and if they are not opinion, then Article 19 does not assert a right to access such essential information.
- The main practical use of Article 19 by campaigning organizations such as the aptly named Article 19 has been in combating censorship. With a focus on the freedom of expression part of this right, the Article19 website states that “freedom of expression is key to the development, dignity and fulfilment of every person”, and provides examples of how States benefit from the freedom of expression: each of the examples turns on political debate and governance; opinion, thus, rather than fact. What they call the “development, dignity and fulfilment of every person” is the development of our ability to speak for ourselves in the battle of opinion.
In conclusion of this mini-analysis of Article 19, the “information and ideas” to which we have an access right are generally held to be expressions of political and other current social opinion – the sort of thing you find in newspapers – and not, for example, practical information related to human development – as contained in journals, books and manuals.
This distinction is important. Article 19 focuses on expressing (seeking, receiving and imparting) political opinions. The kind of educational access to information essential to human development fits more within the ambit of Article 26 – in fact, the very existence of Article 26 is an indication that the UDHR framers did not consider that education was covered by Article 19. This is also true of Article 27 regarding culture and authorship. So let’s take a quick look at these two articles:
Article 26: 1. Everyone has the right to education… Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms…
While Article 26 offers a right to education, it does not mention the fundamental tools for education – knowledge in a written or other fixed form. You obviously need to access information and other educational materials if you are going to have an education, so this may be considered to be implicit, although it is not stated. The UDHR explicitly mandates the teachers and classrooms, but not the books.
Article 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.
Again, the right to participate in “cultural life” and to “share in scientific advancement” in the first clause seems to be conferring an implicit access right: how can you experience culture without access to such cultural products as books and films and music, and how can you share in scientific advancement without reading about it? And yet this is again not stated.
It begins to be clear in the second clause of this Article, which may be surprising to many. This clause confers a “right of protection” of the “moral and material interests” of authors. Rather than giving people the right to read, it gives authors the right to prevent people from reading.
Does this imply that copyright is a human right? Not according to the Committee on Economic, Social and Cultural Rights, a body of independent experts reporting to the UN Office of the High Commissioner for Human Rights, whose commentary on the UDHR and Covenant is taken as holy writ. In their Comment 17, they explain that copyright is not a human right because human rights go deeper. attach to a human (rather than a publishing company or producer), and last a lifetime.
But if copyright is not a human right, the second part of Article 27 of UDHR surely provides its ethical basis. And it places the right to control the work firmly in the hands of the author. This is why access to information is not a human right: If authors/creators have a human right to control their output, which allows them to decide all significant further uses (publishing, reading, playing, etc) of their work, then nobody else does.
Of course authors want to be read, musicians to be heard, and so they are not usually the main barrier to access. But to be read or heard, they have to descend from the cloud of human rights into the marketplace of copyright. They have to sell, license or barter their rights to publishers, producers and others in the media chain, who end up being the main “rightsholders” benefiting from copyright legislation rooted in Article 27(2). From a human rights standpoint, thus, this clause sanctions the entire copyright edifice of modern publishing, music and film. Once this lobbyists’ fingerprint is visible, it ceases to be a surprise that you don’t find an access right to information in the Universal Declaration of Human Rights.
Personally, I am in favour of authors retaining the rights to their work – both as copyright and in their “moral rights”, the full European droits d’auteur. But I am also in favour of the needy populations of the world having unconditional access to information essential for human development. How to reconcile these positions will be the subject of my next few blogs.
References/Acknowledgements
The Article19 website is at http://www.article19.org
The Committee on Economic, Social and Cultural Rights: General Comment 17 can be found at http://www.refworld.org/docid/441543594.html Thanks to Mark Perkins for drawing my attention to this.
An excellent recent book on international copyright is Blomqvist, Jorgen, Primer on International Copyright and Related Rights, Edward Elgar Publishing Ltd, Cheltenham, UK, 2014
Popper, Karl, The Logic of Scientific Discovery, Basic Books, New York, NY, 1959.
The Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/
Ruminations 
@Chris
Should look at the treaties rather than just the UDHR. Even more importantly, the Comments on Articles, which are the official interpretations of the Treaty articles, especially the “CESCR General Comment 17, The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant) “, which specifically states that copyright is not a Human Right.
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Thanks for this Mark – you are right, of course. I have modified the blog to take your comment into account (at least to some extent) – I still feel that Article 27 provides moral/ethical underpinning for copyright, and as such my conclusion in this regard is one I would continue to make. But the main point of my article was to consider if an information access right existed in UDHR, and I don’t see it, either in the text or in the commentaries. Perhaps I am not looking in the right place…
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Chris
I would argue that the mainstream (corporate) interpretation is that Article 27 gives the moral/ethical underpinning for copyright, there are many who argue otherwise. Copyright is clearly ONE way of implementing Article 27, but a poor one, as it tends to reward intermediaries rather than authors. (Historically, copyright and droit d’auteur has always been effictively a publishers right rathet than authors right, which was just a cover). Moral rights are another story, which do not necessarily need to be attached to copyright…
While access to private information is not covered by the Human Rights treaties, access to government information definitely is (see Freedom of Information is a Human Right, UN Body Says ). This is important given government funding of research, and thus the resulting arguement that such research should be part of the access to information right.
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1. Yes, it’s certainly true that copyright is in the main used by the publishing industry downstream from the author. That’s the “lobby” I was referring to at the end of the piece.
2. Copyright and droits d’auteur are not the same thing at all, Mark. Almost by definition you can’t call “droits d’auteur” a publishers right, as the author’s moral rights are intrinsically bound in with copyright.
3. I intend to write a blog about moral rights in due course – they are, incidentally, part and parcel of the Berne Convention (Article 6bis), and as such do indeed “need to be attached to copyright”. Although the USA signed Berne, disputes related to moral rights in the US continue to be tried under civil/case law, but this is a matter of custom and expediency rather than any lack in Berne.
4. You are of course correct about the access right conferred in respect of “government information of public interest” (which is rather far from the implications of “Freedom of Information” – it’s more like “Freedom of The Tiny Bit of Information That is of Any Use Produced by Governments which they Choose to Share”). Again, I was planning to discuss this in a future blog, in the context of the broadening of access permissions so that FOI actually lives up to the full promise of its name. I should have mentioned it here.
5. I also agree with you about government-funded research – which seems to be coming out under Open Access efforts, rather than FOI legislation. But research is not enough – it’s the application of research to human development problems that needs to be widely disseminated and freely accessible, and this is not usually generated with government funding. It will thus be immune to FOI requests.
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Interesting project – best of luck.
Moral rights were only included in the French legal code in 1957 (and the law was drafted under the Vichy government). Prior to that, moral rights were judge made law in France with no legislative basis.
French copyright history is pretty instructive. Post revolution there was not copyright law, it was introduced later to encourage the useful arts / sciences (as opposed to scandal pamphlets). Under Napoleon, it was attached to registration & state censorship (similar to UK stationers ‘copyright’ & pre-revolutionary France printing privileges).
Moral rights was developed by judges, partly as part of the struggle between copyright as state granted privilege and copyright as a natural right. Both of these views had been part of the Enlightenment, but neither had completely won out. This struggle was similar to that in the UK & US, with publishers using ‘authors rights’ to attempt to justify laws in their interests.
Moral rights were not part of the initial Berne Convention, they were added in 1928!
While current ‘Droit d’Auteur’ shows that the view of copyright as a natural right has finally won out legally in France, the historical myth of Droit d’Auteur (even, or especially in France) is in need of revision, especially given current debates over the direction of copyright. Moreover, the actual application of moral rights by the French legal system is often not that far from how such questions are resolved in common law systems.
Regarding access to information right, I agree that this is more in the domain of the open access/data movement – but the arguements & underpinnings are interlinked and important. As for ‘application of research to human development problems’, who is carrying out this work? Is ti done within the academic system?
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Nice comment, Mark. Thanks. I will certainly bear these views in mind when putting my piece on moral rights together.
To consider your last question, about who is carrying out the work of applying “research to human development problems”, well, in the health sector it’s good old R2P2P – research to policy to practice, and there is quite a bit being done – at least on the first part of R2P, with WHO-backed programmes like EVIPNet creating policy briefs out of current research findings.
Not enough is being done on the second part – practical applications. When you think back on the Lancet series on known, resource-viable interventions that could decimate childhood mortality, it is actually a knowledge management issue. We generally have the knowledge, and often even have the resources, and still people are dying for lack of knowledge in an appropriate, usable form.
I don’t think the academic system is geared for such adaptation work – it is often done by journalists and TV and radio people, but it is not organized. There is no system to select, collect and disseminate material for use. Some of the barriers are regulatory, and these should be attacked.
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