Are moral rights human rights? Event Review – Part I

by Pedro Malaquias

Last Wednesday, 12 February 2014, at Bird & Bird offices, BLACA (the UK national group of the ALAI) and IPkat held a special joint meeting over the topic ‘Are moral rights human rights?’. The seminar was chaired by Sir Colin Birss, judge of the High Court of Justice of England and Wales and had as its speakers Eleonora Rosati and Graham Smith. This post deals in particular with Rosati’s excellent presentation.

After the customary introductions by the chair, Rosati posed three main questions: What are human rights? Why might moral rights be human rights? Why might that not be the case?

In reply to the question “What are human rights?” Rosati started by provocatively saying that nowadays everything is a human right. On the same point, she resorted to the famous expression used by Justice Potter Stewart in Jacobellis v. Ohio[1] to describe his threshold test for obscenity (later used by McCarthy on Trademarks and Unfair Competition): “I know it when I see it”. However, would that really be the case? Referring to photographs available at The Old Pornographer[2], the speaker demonstrated to us that views about pornography have developed throughout the years and that the same might have happened (or is happening) in relation to what is to be considered as a human right. Straightforward conclusions should, therefore, be made with care. In any case, a starting point to the question could be found in human rights principles, which understand these rights as universal and inalienable, indivisible, interdependent and interrelated[3].

In addressing the second of the posed questions, Rosati made reference to the importance of intellectual property justifications to finding an adequate answer. In fact, under Kantian justifications, it is easier to characterize intellectual property rights as human rights, as the work is seen as an extension of the author’s inner personality. After dealing with justifications, the speaker proceeded by making reference to Article 27(2) of The Universal Declaration of Human Rights, which provides that “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[4], noting that such provision was attached to the right to cultural participation and that, despite the efforts of the French delegation, no reference to perpetual moral rights was included in it. She further discussed the status of the 1996 ICESCR, which, under article 15(1)(c) recognizes 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 is the author[5]. Rosati concluded with the analysis of the provision in article 6bis of the Berne Convention[6] and article 5 of the WPPT[7].

In answering the third question, Rosati noted the lack of two of the characteristics usually associated with human rights (universality and inalienability) and referred, in particular, to the possibility of refusing protection ex vi article 9(1) TRIPS[8] to the USA and UK (the need to assert moral rights) and to the recent developments brought by The Orphan Works Directive[9] and the Enterprise and Regulatory Reform Act[10]. Special reference was also made to the rights of employees; considering sections 79(3) and 82(2) CDPA[11], were employees less human than other mortals?

In conclusion, Rosati’s discussion returned to The Old Pornographer and left the audience with some further questions. Could this be a third generation human right, 66 years old? Is copyright itself (in its economic dimension as well) a human right (“we may know the answer, but still”)? Does it make a difference? In concluding this excellent presentation, Rosati gave us a quote from Batman Begins: “It’s Not Who I Am Underneath, But What I Do That Defines Me”.

Pedro Malaquias is a Portuguese Qualified lawyer. Currently, he is a LL.M. candidate at Queen Mary, University of London and works as a Student Research Fellow at Queen Mary Intellectual Property Research Institute (QMIPRI) and as Assistant Editor at Queen Mary Journal of Intellectual Property (QMJIP). @PedroMMalaquias

[1] Jacobellis v Ohio, 378 US 184, 12 L. Ed. 2d. 793, 84 S. Ct. 1676 (1964)

[4] Article 27(2) of The Universal Declaration of Human Rights.

[5] Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights.

[6] Berne Convention for the Protection of Literary and Artistic Works, of September 9, 1886, completed at PARIS on May 4, 1896, revised at BERLIN on November 13, 1908, completed at BERNE on March 20, 1914, revised at ROME on June 2, 1928, at BRUSSELS on June 26, 1948, at STOCKHOLM on July 14, 1967, and at PARIS on July 24, 1971, and amended on September 28, 1979

[7] WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996

[8] The Agreement on Trade Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.

[9] Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works

[10] Enterprise and Regulatory Reform Act 2013.

[11] Copyright, Designs and Patents Act 1988.