Check against delivery

Statement by Ms. Farida Shaheed
SPECIAL RAPPORTEUR IN THE FIELD OF
CULTURAL RIGHTS

28th session of the Human Rights Council
11 March 2015
Geneva

 Honourable Chair, Excellencies, distinguished delegates, ladies, gentlemen, and all
others;
I am honoured to take the floor before the Human Rights Council, for the last time in
my capacity as Special Rapporteur in the field of cultural rights.
Today, I shall present my last thematic report to the Human Rights Council on
copyright policy and the right to science and culture (A/HRC/28/57), and will share
some observations to conclude my six-year tenure as Independent Expert and then
Special Rapporteur. I will also report on the country visit I undertook in Viet Nam from
19 to 29 November 2013 (A/HRC/28/57/Add.1)
Mr. President,
In 2014, my research focused on intellectual property regimes and the enjoyment of the
right to science and culture. Given the complexity of the issue, I have divided the work
into two consecutive reports: the first, before you today, concentrates on the interface of
copyright policy with the right to science and culture (A/HRC/28/57). The second,
relating to patent policy, will be presented to the General Assembly in October 2015.
As you know, there are unresolved tensions between intellectual property laws and
human rights. Approaching them through the lens of the right to science and culture
offers a promising space for reconciliation, as article 15 of ICESCR simultaneously
calls for the protection of the right to take part in cultural life, the right to enjoy the
benefits of scientific progress and its applications, and the right to benefit from the
protection of authorship. Cultural participation and the protection of authorship are both
human rights principles designed to work in tandem. Striking an appropriate balance
between the two goals is thus essential, even if challenging.
Copyright laws prohibit much more than literal copying. They generally also render
illegal translating, publicly performing, distributing, adapting or modifying a
copyrighted work without permission or licence from the copyright holder. Copyright
protection is thus fundamental to the system of licensing and payment for access to
creative work that drive various cultural industries. Copyright holders, who may not be
the original author, usually monetize a wide variety of uses and may prevent
adaptations they find objectionable. Consequently, the creative freedom of others to
build upon and adapt existing cultural works may become dependent upon their ability
to pay a licensing fee.
Partly in response to this concern, copyright laws incorporate exceptions and
limitations, which preserve the freedom of other artists and the general public to use
copyrighted works in certain ways without the copyright holder’s permission. National
practices on copyright exceptions and limitations vary significantly, however.
A widely shared concern stems from the tendency for copyright protection to be
strengthened with little consideration to human rights issues. The tendency for trade
negotiations to be conducted amid great secrecy, with substantial corporate
2

 participation but without an equivalent participation of elected officials and other public
interest voices, adds to this concern.
In my report, I advocate a human rights based approach to copyright issues, which
would help focus attention on important themes that may be lost when copyright is
treated primarily in terms of trade: the social function and human dimension of
intellectual property, the public interests at stake, the importance of transparency and
public participation in policymaking, the need to design copyright rules to genuinely
benefit human authors, the importance of broad diffusion and cultural freedom, not-forprofit cultural production and innovation, and the special consideration for the impact
of copyright law upon marginalised or vulnerable groups.
I would like to highlight some key points of my reports:
1) First, intellectual property rights are not human rights. This equation is false
and misleading. In some ways, copyright policy falls short of adequately protecting
authorship, in other ways it often goes too far, unnecessarily limiting cultural freedom
and participation.
2) Second, authors must be distinguished from copyright-holders. The right to
protection of authorship remains with the human author(s) whose creative vision gave
expression to the work, even when the copyright interest has been sold to a corporate
publisher or distributer. We should always keep in mind that copyright regimes may
under-protect authors because producers/publishers/distributors and other “subsequent
right-holders” typically exercise more influence over law-making than individual
creators, and may have divergent and possibly opposing interests to those of the
creators.
3) Third, protection of authorship as a human right requires in some ways more and in
other ways less than what is currently found in the copyright laws of most countries.
This holds true for both the moral and the material interests of authors.
In this regard, it is important to look beyond moral rights already recognized in copyright
regimes to discern additional or stronger moral interests from a human rights standpoint,
such as, in particular, the interest of artists and researchers in creative, artistic and academic
freedom, freedom of expression, and personal autonomy.
Creators often need corporate rights holders: to develop innovative ways of delivering
cultural works to the public, provide capital to finance high-budget cultural productions, and
free artists from many of the burdens of commercializing their work. The human right to
protection of authorship requires that copyright policies be carefully designed to ensure that
authors (and not only copyright holders) benefit materially. An appropriate balance is
crucial, recognizing that creators are both supported and constrained by copyright rules.
I would like to stress that copyright laws are only one element in the protection of
authorship and should be understood as part of a larger set of policies to promote the
cultural sector and the right to science and culture. Artistic livelihoods may, and should,
be supported in other ways.
3

 In this regard, some key conclusions and recommendations are as follows:
-

States bear a human rights obligation to ensure that copyright
regulations are designed to promote creators’ ability to earn a
livelihood and to protect their scientific and creative freedoms, the
integrity of their work and their right to attribution.

-

Given the inequality of legal expertise and bargaining power between
artists/creators on the one hand, and their publishers and distributors
on the other, States should protect artists from exploitation in the
context of copyright licensing and royalty collection. In many
contexts, legal protections that may not be waived by contract will be
most appropriate. Enforceable rights of attribution and integrity, droit
de suite, statutory licensing and reversion rights are recommended
examples.

-

States should further develop and promote mechanisms for protecting
the moral and material interests of creators without unnecessarily
limiting public access to creative works, through exceptions and
limitations and the subsidy of openly licensed works.

-

States are encouraged to consider policies on labour practices, social
benefits, funding for education and the arts, and cultural tourism, etc.,
to support artistic livelihoods.

4) Fourth, exceptions and limitations of copyright — defining specific uses that do not
require a license from the copyright holder — should be developed to ensure the conditions
for everyone to enjoy their right to take part in cultural life by permitting legitimate
educational usages, expanding spaces for non-commercial culture and making works
accessible for persons with disabilities or speakers of non-dominant languages.
The main challenge, I believe, is that international copyright treaties generally treat copyright
protections as mandatory, while largely treating exceptions and limitations as optional. The
standard for judging whether a particular exception or limitation is permissible under
international copyright law is not articulated with precision. This is why one of my
recommendations is to explore the possibility of establishing a core list of minimum
required exceptions and limitations incorporating those currently recognized by most
States, and/or an international fair use provision.

5) Our world is changing, and today open licensing is contributing to create a “cultural
commons,” in which everyone can access, share and recombine cultural works. These are
particularly important for the dissemination of scholarly knowledge and are increasingly
encouraged in academic institutions. Such models should be strongly supported.
Creativity is not a privilege of an elite segment of society or professional artists, but a
universal right. Copyright law and policy must be designed with sensitivity to populations
that have special needs or may be overlooked by the market. From the human rights
perspective, copyright policies must be judged by how well they serve the interests of human
authors, as well as the public’s interest in cultural participation.
4

 Mr President,
I will turn now to my visit to Viet Nam.
Viet Nam has made remarkable progress towards achieving the Millennium Development
Goals and realizing a range of economic, social and cultural rights. Considerable efforts are
under way to enlarge access to education and culture, including in remote regions. The new
2014 Constitution includes rights of significant importance in the field of culture, and I hope
that provisions on possible limitations to such rights will be interpreted in accordance with
international standards.
The Government and civil society appear to be engaged in a process that is redefining the
contours of the space available for a diversity of voices on a number of issues.
In the field of history teaching, in particular, I encourage the Government to open spaces to
foster critical thinking, analytic learning and debate, and to focus on the teaching of history
understood as an academic discipline. Concerted efforts should be made to ensure that the
various histories of minority groups are included. I was pleased, however, to note
achievements in the area of minority languages education.
Space for the enjoyment of artistic freedoms has grown in Viet Nam over the last decades.
However, freedom of artistic expression is still limited by multiple regulations and I express
my concern about the system of prior and post censorship that is effectively still in place. My
report formulates many recommendations to help the Government ensure that national laws
comply with international human rights standards. Programmes supporting artists and
enhancing access to the arts are welcome, but steps should be adopted to ensure these are not
used as a tool for controlling the content of artistic expression. I also recommend putting an
end to the surveillance and harassment of artists and academics.
There is an increased focus on Viet Nam’s rich cultural heritage as a resource for
development and poverty reduction. Some communities, however, have seen their ways of
life and culture completely disrupted by development programmes. More generally, land
grabbing for commercial usage and its impact on people’s livelihoods and cultural life are
major issues needing attention.
Like all countries eager to develop their tourism industry, Viet Nam is confronted with
important challenges in ensuring that no serious harm is done to the environment and cultural
heritage. In my report, I stress that measures are needed to ensure that the people whose
cultural heritage is used to promote tourism are empowered to manage such activities to their
best advantage.
More generally, a major challenge for the Government is to depart from its top-down
approach in the field of culture, too frequently used to steer individual and collective
behaviours in directions considered compatible with government policies and objectives. I
am concerned about the negative impact of this approach on the right of everyone to
participate in cultural life as they choose, conduct their own cultural practices, and freely
develop their cultural heritage.
5

 I wish to warmly thank the Government of Viet Nam for their invitation and cooperation, and
I encourage them to continue inviting special procedures and to allow people, in particular
civil society actors, to meet mandate holders freely.
Mr. President,
Let me mention that in November 2014, I also visited Botswana. The report on that visit
will be presented at the 31th session of the Council in March 2016.

Mr. President,
The work on intellectual property regimes in conjunction with the other studies and
reports I have submitted, as well as the eight country visits I have undertaken over my
six-year mandate, allows me to complete a first round of exploration of the content of
Article 15 of ICESCR.
In my various reports, I have addressed issues related to the right of everyone to
participate in cultural life, to access and enjoy cultural heritage, to enjoy the benefits of
scientific progress and its applications, to benefit from the protection of authorship, and
to the indispensable freedom of artistic expression and creativity.
These reports, I hope, demonstrate how relevant cultural rights are for addressing
important issues and challenges, such as history teaching and memorialization
processes, the role of artists in our societies, or the impact of advertising and marketing
practices on human rights. I am particularly glad that my conclusions and
recommendations translated into new language in some specific resolutions of this
Council. I think in particular of resolution 27/3 extending the mandate of the Special
Rapporteur on truth, justice, reparations and guarantees of non-recurrence referring to
memorialization initiatives and processes, and of resolution 27/31 on civil society
space, emphasizing important role of artistic expression and creativity in the
development of society.
I am pleased that a number of States and other stakeholders have taken actions on my
recommendations and I hope they will continue their efforts to advance cultural rights,
understood as the rights for each person, individually and in community with others, as
well as groups of people, to develop and express their humanity, their world view and
the meanings they assign to their existence and to development through, inter alia,
values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of
life. Cultural rights protect access to cultural heritage and resources that allow selfidentification and development processes to take place.
As I have reiterated in many discussions with Governmental actors and other
stakeholders, the mandate of the Special Rapporteur in the field of cultural rights is not
about protecting culture and cultural heritage per se, but about promoting the conditions
that allow everyone without discrimination to access, participate in and contribute to
cultural life in a continuously developing manner.
6

 Because culture is a living, dynamic and constantly evolving process, it must not be
seen as a series of isolated manifestations or hermetic compartments, but as an
interactive process whereby individuals and communities, while preserving their
specificities and purposes, give expression to the culture of humanity.1
All my thematic reports are based on these principles, and I will be happy to take more
time at the end of the interactive dialogue to deliver concluding observations.

I thank you very much.
****

1

General Comment 21.

7