tag:blogger.com,1999:blog-12505562.post8522676826148435753..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Appeals to Human Rights: The Next Battlefield?William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger15125tag:blogger.com,1999:blog-12505562.post-62810473885143190092008-02-04T09:30:00.000-05:002008-02-04T09:30:00.000-05:00An update: see this article by Orit Fischman Afori...An update: see this article by Orit Fischman Afori on Human Rights and U.S. Law, posted 2/1 on ssrn:<BR/><BR/>http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089376William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-32354165869707591622008-01-22T01:01:00.000-05:002008-01-22T01:01:00.000-05:00It seems I've posted a broken link in my previous ...It seems I've posted a broken link in my previous comment. A working link to the Karl Fogel's article "The Promise of a Post-Copyright World" is here.<BR/>http://www.questioncopyright.org/promise<BR/>It doesn't seem to work without the leading www. Sorry.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-45585362246304846992008-01-21T01:00:00.000-05:002008-01-21T01:00:00.000-05:00I've recently read an article by Karl Fogel at The...I've recently read an article by Karl Fogel at <A HREF="http://questioncopyright.org/promise." REL="nofollow">The Promise of a Post-Copyright World</A>. The author explains there the origins of the copyright. Once you know how it all started and what was the original intention behind introducing the copyright - no, it's not protection of authors - you're no longer surprised by the crazy things happening now related to copyright legislation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-66630350417377228852008-01-18T13:58:00.000-05:002008-01-18T13:58:00.000-05:00Thanks as always for your excellent comment, Zohar...Thanks as always for your excellent comment, Zohar.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-18994040744916049442008-01-18T13:53:00.000-05:002008-01-18T13:53:00.000-05:00Hi Bill,I just happened to be looking into this is...Hi Bill,<BR/><BR/>I just happened to be looking into this issue recently. I think that the General Comment from 2005 is actually bad news to proponent of the IP-rights-as-human rights line. (There is also an earlier a Committee Statement on the same issue, here, http://www.unhchr.ch/tbs/doc.nsf/0/1e1f4514f8512432c1256ba6003b2cc6/$FILE/G0146641.pdf.)<BR/><BR/>The Committee conducted a doctrinal line-drawing, pointing out to some fundamental distinctions between human rights and intellectual property. Whereas human rights are “timeless expression of fundamental entitlement of the human person” and safeguard the “personal link between authors and their creation” - intellectual property rights are “generally of temporary nature, and can be revoked, licensed or assigned to someone else.” <BR/><BR/>The Committee adopted a kinda utilitarian perspective on intellectual property, which is perceived “first and foremost [as] means,” and as being “[ultimately … a social product [having] a social function.” Intellectual property law is said to be “primarily protect[ing] business and corporate interests and investments.” Though IP law and the rights stipulated in Article 15.1(c) ICESCR may cover common territories, a perfect overlap was rejected outright.<BR/><BR/>Further, as to the substantive content of authors’ rights within the purview of human rights law, the Committee opines that only natural persons enjoy Article 15.1(c) protections, and that the human right securing material interests extends only to the *basic* material interests of authors that are necessary to enable an *adequate* standard of living. Protection to the material interests of authors under Article 15 ICESCR is thereby undermined and significantly conflated with the general protection to property under other human rights norms. <BR/><BR/>I quote:<BR/>“In striking [authors v. public] balance, the private interests of authors should not be unduly advantaged and the public interest in enjoying broad access to their productions should be given due consideration. States parties should therefore ensure that their legal or other regimes for the protection of the moral and material interests resulting from one’s scientific, literary or artistic productions constitute no impediment to their ability to comply with their core obligations in relation to the rights to food, health, education, as well as to take part in cultural life and to enjoy the benefits of scientific progress and its applications or any other right set out in the Covenant.”<BR/><BR/>I wont bore you with the rest, but only mention that facilitating access to information by members of the public is actually, to some extent, a core obligation under the ICESCR! (this is actually a far more interesting and academically changing question.) Specifically, state parties have a “duty to prevent that unreasonably high costs for access … to schoolbooks and learning materials, undermine the rights of large segments of the population to health, food and education.” – That was considered an universal human rights with affirmative force. <BR/><BR/>I am not sure this is what maximalists were hoping to hear…Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-11443001093884112008-01-17T20:23:00.000-05:002008-01-17T20:23:00.000-05:00On an international basis, I'm wondering if the pr...On an international basis, I'm wondering if the progenitors of this approach ever considered how countries with questionable humans rights records to accept this new approach to IP rights. Countries with a propensity to ignore human rights issues (due to political or cultural reasons) already have trouble dealing with IP as an economic right that only indirectly benefits the governing authorities. To position it as an inviolable human right will unnecessarily thicken the plot and cause even more resistance to IP rights in most of the developing and least developed worlds. <BR/><BR/>As for the theory itself, the blurring of the line between the protection of the freedom to express and the protection of that expression can only be of detriment to each of these fields. Human rights arguments will be diluted because they have to accomodate economic concerns arising from IP rights and their exploitation, and economic rights arguments will be unnecessarily infused with emotional and moral barriers. The purity and rationale of each approach would be lost.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-31005260814589151642008-01-17T17:49:00.000-05:002008-01-17T17:49:00.000-05:00Well put CarlWell put CarlWilliam Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-46789924249668698942008-01-17T17:44:00.000-05:002008-01-17T17:44:00.000-05:00Access to knowledge is a human right.Access to knowledge is a human right.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-74596612211932036262008-01-17T17:15:00.000-05:002008-01-17T17:15:00.000-05:00One wonder if this approach, which would take copy...One wonder if this approach, which would take copyright so far out of the general public understanding about it, and so far afield from areas where the public is sympathetic to author concerns (No quoting! No citing! No parody!), that it might provoke the final backlash that various people have been predicting for years. If so, maybe a silver lining.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-24454465647155131502008-01-17T13:56:00.000-05:002008-01-17T13:56:00.000-05:00Considerable embarrassment for the human rights ag...Considerable embarrassment for the human rights agenda might be caused if a human right to intellectual property were understood as coinciding exactly with the "instrumentalist" intellectual property rights protections required by the TRIPS Agreement. Rather than providing a source of limiting principles, human rights could instead establish a basis for assertions of requirements for stronger protections than are provided by existing intellectual property laws. <BR/><BR/>--------------<BR/><BR/>What I think makes this paragraph striking is the way it construes the "human rights agenda" as if it were not instrumentalist in nature. I'm not sure I'm ready to accept that human rights law's directive isn't (and shouldn't be) pragmatic.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-28979337257962154532008-01-17T13:27:00.000-05:002008-01-17T13:27:00.000-05:00Rights in intangibles tend to be discussed in over...Rights in intangibles tend to be discussed in overlapping dialectics. The first one is economic: it's based on the cool detached microeconomic calculus of incentive weighed against the baneful effects of monopoly.<BR/>The second is moral: it's based on deeply emotional responses to situations that are rooted in ideas of selfhood, fairness, community, and pride.<BR/><BR/>Each dialectic is complex. But weighing the results of one against the results of the other is inevitably subjective. What is needed is that ineffable but real attribute: good judgment.<BR/><BR/>The Human Rights approach is founded upon a naivete about itself that strongly suggests that good judgment will be in short supply.Ampersandhttps://www.blogger.com/profile/14473706537762979474noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-88737408362724077152008-01-17T11:20:00.000-05:002008-01-17T11:20:00.000-05:00Well, that would be the fourth generation of human...Well, that would be the fourth generation of human rights. When it comes to opposing I think that "civil disobedience" is the keyword.<BR/><BR/>As J.P. Barlow once <A HREF="http://www.thewavingcat.com/2007/01/05/john-perry-barlow-if-you-wanna-share-somethine-share-it/" REL="nofollow">said</A>:<BR/><I><BR/>"Sooner or later they’re dealing with such a massive level of civil disobedience that they have to address it"<BR/></I><BR/><BR/>And maybe a little bit off-topic but...<BR/><I><BR/>"One reason for the bustle was that over large parts of the continent other people preferred to make money without working at all, and since the Disc had yet to develop a music recording industry they were forced to fall back on older, more traditional forms of banditry."<BR/></I><BR/>T. Pratchett, <EM>Equal Rites</EM>, 1987.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-66878287338348225442008-01-17T10:59:00.000-05:002008-01-17T10:59:00.000-05:00"please do not quote or cite without permission." ...<I>"please do not quote or cite without permission." </I><BR/><BR/>To a lay person, this seems ridiculous, laughable. Does it hold any legal power whatsoever?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-54442595945098404912008-01-17T08:33:00.000-05:002008-01-17T08:33:00.000-05:00Excellent summary and thanks for the links.The par...Excellent summary and thanks for the links.<BR/><BR/>The paragraph in the Gowers response about making a declaration of ECHR compliance is a new and interesting feature of British law post-Human Rights Act; it applies to all measures without regard to the issue. <BR/><BR/>It's essentially a mandatory rights-proofing exercise and the ECHR provisions cited are property rights (in the first protocol) and no more, which again is very familiar for any legislative proposal that looks vaguely like economic-regulation or having any financial impact. So, in the context of the other developments you cite, I suppose that is mildly positive news, in that it is the potential negative impact on "property human rights" (which is familiar and at least honest) rather than "expression and culture human rights" (which is untested and potentially dishonest, as you explain above).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-77044366725313445792008-01-17T08:20:00.000-05:002008-01-17T08:20:00.000-05:00Privacy is a human right, and this is what gives r...Privacy is a human right, and this is what gives rise to private property, whether material or intellectual.<BR/><BR/>What are not rights are the mercantile privileges of copyright and patent.<BR/><BR/>Reproduction monopolies unethically constrain the liberty of erstwhile free men.<BR/><BR/>So, yes, intellectual property is a human right, and this means those who make or purchase it have a fundamental right to do with their own property what they wish, whether to create copies or derivatives, and to choose whether to publish them or not.<BR/><BR/>No-one should be given the privilege of suspending the liberty of the people to their own property whether as a commercial incentive, favour, or anything else.<BR/><BR/>Liberty is justly constrained only by the rights of others, to liberty, truth, privacy, and life.<BR/><BR/>http://www.digitalproductions.co.uk/index.php?id=55Crosbie Fitchhttps://www.blogger.com/profile/06554471152790988479noreply@blogger.com