Universalism, Pluralism or Isolationism? The Relationship between Authors’ Rights and Creators’ Human Rights

It is sometimes suggested that authors’ rights are protected under international human rights law. This claim is often supported by reference to the “creators’ rights” established under Article 27(2) of the Universal Declaration of Human Rights and Article 15(1)(c) of the International Covenant on Economic Social and Cultural Rights. If authors’ rights, as established in international copyright law, were indeed human rights, claims to the universalism of copyright norms would be significantly reinforced as, in addition to the obligations imposed by international agreements such as the Berne Convention and Agreement on Trade Related Aspects of Intellectual Property (TRIPS), states would assume duties to protect authors under human rights instruments. Is it true, then, that the authors’ rights protected under copyright laws are synonymous with the creators’ rights protected in human rights law? If not, what is the relationship between the two sets of rights? These are the issues explored in this chapter. Section 1 outlines the argument that author’s rights are protected as human rights. It focuses on creators’ rights, but touches also on arguments that authors’ rights are encompassed within other generally recognized human rights, such as the right of freedom of expression and the right of property. The chapter then moves on to examine the scope of creators’ rights within international human rights law, doing so by reference to the reports of the United Nations’ (UN) Committee of Economic, Social & Cultural Rights and the UN Human Rights Committee’s Special Rapporteur in the field of cultural rights. These emphasize significant distinctions between authors’ rights and creators’ rights and, as a consequence, challenge the universalist claim that human rights law provides fundamental reinforcement for the norms established in copyright law. Section 3 seeks to establish the known contours of the relationship between authors’ rights and creators’ rights. It is suggested that, while it is very difficult to argue that the copyright system as a whole is supported by the international obligation to protect creators’ rights, there are aspects of the current system which would appear to be based on human rights norms. Similarly, there are aspects of copyright law, at international and national levels, which sit uneasily with the obligations assumed by states under Article 27(2) of the UDHR and Article 15(1)(c) of the ICESCR. The chapter concludes by arguing that there is a significant (if unresolved) relationship between authors’ rights and creators’ rights, but that we currently do not have a mutually-supportive, pluralist copyright acquis in which the international copyright system is underpinned by the human rights of creators. Rather, as a matter of politics and doctrine, the two systems operate in relative isolation from one another. This situation is unlikely to change until, at the very least, the scope and effect of creators’ rights are defined in greater detail. The means through which such clarification might be achieved are briefly considered.