A Roadmap for Assimilating Authors’ and Users’ Human Rights into International Copyright Law
Creators: name: Al-Sharieh, Saleh
Publisher: name: Université d'Ottawa / University of Ottawa
Year: 2014
Subjects: intellectual property
human rights
copyright
TRIPS
balance
users' rights

description: This thesis argues that international copyright law should play a stronger role in the implementation of authors’ and users’ international human rights. In international human rights law, authors’ and users’ human rights are two sides of the same coin: both derive from human dignity and contribute to the development of the human personality. Authors have a set of moral and material interests that entitle them, as a minimum, to an adequate standard of living, to be (or not to be) associated with their intellectual works, and to object to any distortion or mutilation of those works. These entitlements receive a viable back up protection from authors’ human rights to freedom of expression and property. At the same time, users have human rights in culture, arts, and science that entitle them to access, use, and share intellectual works. Also, their human rights to freedom of expression and education reinforce these entitlements. Authors’ and users’ human rights are reciprocal, mutually-reinforcing, and mutually-limiting. Thus, their balanced implementation—by means of legislation or adjudication—depends on three rules: authors’ and users’ human rights are limited, they are not hierarchal, and they are interdependent on and indivisible from other human rights and freedoms. On the other hand, despite its practicality and predominance, the exclusive-right system of international copyright law does not necessarily enable authors to achieve an adequate standard of living, and TRIPS has explicitly overlooked their moral interests. Similarly important, the nature and nurture of international copyright law do not give due weight to users’ human rights. International copyright law includes very few mandatory exceptions and limitations, which are supposed to address users’ rights by granting them some liberties or immunities when using intellectual works, but states’ ability to devise new exceptions and limitations is curtailed by the three-step test. Overall, international copyright law fails to meet the balance requirements of international human rights law since it creates a set of hierarchies between the rights it regulates, sometimes fails to recognize the limited nature of authors’ rights, and is inattentive of copyright’s impact on the whole corpus of international human rights. The thesis suggests that international copyright law should become clearer— and more interested—in implementing the international human rights of authors and users of intellectual works. It can do so by incorporating as an objective the implementation of authors’ and users’ human rights in a balanced manner. This objective can function as a ground rule on which further measures necessary for the implementation of authors’ and users’ human rights may rely. In addition, it can provide normative support to some scholars’ proposals for reforming international copyright law. The new objective of international copyright law may become part of the regime through amending TRIPS, interpreting its provisions by the WTO panels and Appellate Body, or establishing a new international copyright instrument.