A19 Right to Share Principles

7/28/2019 A19 Right to Share Principles

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Contents

Introductory statement 2

Preamble 4

SECTION I General Principles 6

Principle 1: The right to freedom of expression 7

Principle 2: Copyright 8

Principle 3: Principles of Interpretation 9

SECTION II Protection o the public domain 10

Principle 4: General principles 11

Principle 5: Copyright duration 11

Section III Copyright exceptions 12

Principle 6: Fair dealing and derivative works 13

Principle 7: The right to personal enjoyment of cultural goods 13

SECTION IV Freedom o expression and copyrightenorcement in the digital environment 14

Principle 8: Disconnection from access to the Internet 15

Principle 9: Filtering and blocking of content subject to copyright 15

Principle 10: Intermediary liability and content removal 16

Principle 11: Civil liability for copyright infringement 17

Principle 12: Criminal liability 17

SECTION V Measures promoting accessto knowledge and culture 19

Principle 13: Promoting access to knowledge and culture 20

SECTION VI Transparency and accountabilityin copyright policy-making 21

Principle 14: Transparency and accountability

in negotiation of international agreements 22

Principle 15: Transparency and evidence in copyright policy-making 22

Appendix A 23


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Introductory statement

These Principles seek to establish a ramework which can beused to ensure rstly, that the right to reedom o expressionand the ability to share knowledge and culture are ullyprotected in the digital age; and secondly, that copyrightinterests do not unduly restrict them. The Principles also seekto promote positive measures which oster both the ree fowo inormation and ideas and greater access to knowledge andculture on the Internet and beyond.

The Principles were developed as a result o concerns that the undamental humanright to reedom o expression, guaranteed in UN and regional human rightsinstruments and nearly every national constitution, has been increasingly eroded onthe grounds o protecting copyright. The Internet has been at the centre o an alarmingexpansion o copyright claims at the expense o reedom o expression and, moregenerally, the protection o human rights. These Principles arm that the right toreedom o expression and the ree fow o inormation and ideas cannot be seen asmarginal to such developments.

Freedom o expression that is, the reedom o all people to seek, receive and impartinormation and ideas o all kinds - is the oundation o diversity within culturalexpression, creativity and innovation. It is, thereore, an essential part o the right toparticipate reely in the cultural lie o society, enjoying the arts and sharing in scienticadvancement: the very benets that copyright exists to promote.

The Internet has radically changed the way in which people exchange inormation andideas. It has also presented serious challenges to the way in which copyright and relatedrights have traditionally been enorced: copies can be made available across borderson an unprecedented scale and at minimal cost. Copyright laws need to adapt to keeppace with digital technology; they need to adapt to consumer demand and culturalpractices in this global economy built on ideas and innovation. People have a legitimateexpectation that their undamental right to receive and impart inormation and ideaswill be ostered rather than restrained by copyright.

As we show in these Principles, international law provides a basis or resolving theseissues. The Principles we set out here oer a progressive interpretation o internationallaw and o best practice in individual States, as refected, inter alia, in national lawsand the judgments o national courts.


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These Principles are the result o a series o consultations, organised by ARTICLE19, with high-level experts rom Arica, Latin America, North America, Europe andSouth Asia: activists, legal practitioners, academics and other experts in international

human rights law on the reedom o expression and in copyright law. The consultationsincluded two expert meetings in London on 18 November 2011 and 7 December 2012and broader discussions around the drat that emerged rom those meetings.

The Principles are intended to be used by individuals, activists, campaigners, legalpractitioners, intermediaries, judges, elected representatives and public ocials aroundthe world as they seek to protect and promote the right to reedom o expression.


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Preamble

Rearming our belie that reedom o expression constitutesone o the essential oundations o a democratic society, oneo the basic conditions or its progress and or the enjoymento other human rights and undamental reedoms;

Desiring to promote a clear recognition o the limited scopeunder international human rights law o restrictions onreedom o expression that may be imposed in the interest ocopyright protection, especially online;

Taking into account relevant provisions o the UniversalDeclaration o Human Rights, the International Covenanton Civil and Political Rights, the International Covenant onEconomic Social and Cultural Rights, the Arican Charter onHuman and Peoples Rights, the American Convention onHuman Rights, the European Convention on Human Rights,the EU Charter o Fundamental Rights and Freedoms and theUNESCO Convention on the Protection and Promotion o the

Diversity o Cultural Expression;

Bearing in mind that the ree fow o inormation isundamental or access to knowledge, development andculture, which is the common heritage o all humankind andwhich should be cherished, upheld and made accessible orthe benet o all;

Considering that the purpose o copyright is to benet society,promote the progress o science and the arts, acilitate growth,

support creativity and spread cultural expression;


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Aware that copyright has been increasingly used to discouragecreativity and stife ree expression and the ree exchange o

inormation and ideas in order to protect exclusive proprietaryinterests, at the expense o the wider public interest;

Recognising that digital technologies have greatly enhancedreedom o expression and cultural diversity whilst, at thesame time, using copyright protection as an increasinglysevere restriction on these activities;

Cognisant o the value and benets o new art orms, includingderivative and transormative works and mash-ups, or artistic

and cultural expression, the general benet to society and theenrichment o the economy;

We1 agree upon the ollowing Principles, and call on individualsand organisations to endorse, promote and respect them intheir work. We also recommend that appropriate bodies atnational, regional and international levels give eect to thesePrinciples and engage in their dissemination, acceptance andimplementation.

1 The term we comprises the participants o two expert meetings in London and other individuals who have been

involved in the process o developing these Principles; as well as the individuals and organisations who have endorsedthe Principles.


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SECTION I

General Principles


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Principle 1: The right to reedom o expression

1.1 Freedom o expression protects inormation, opinions and ideas o all kinds

disseminated through any media, regardless o borders. The right to reedomo expression includes the right not only to impart but also to seek and receiveinormation.

1.2 The Internet is a public good which has become essential or the eectiveexercise and enjoyment o the right to reedom o expression.

1.3 The exercise o the right to reedom o expression may be subject to restrictionsonly on grounds specied by international law, including or the protection othe rights o others. The rights o others include the protection o the right toproperty and in particular copyright.

1.4 No restriction on reedom o expression on the ground o protection o therights o others, including copyright, may be imposed unless the State candemonstrate that the restriction is prescribed by law and is necessary in ademocratic society to protect those interests. The burden o demonstratingthe validity o the restriction rests with the State.

(a) Prescribed by law means that the law must be accessible,unambiguous, drawn narrowly and with sucient precision so as toenable individuals to oresee whether a particular action is unlawul.

(b) The law should provide or sucient saeguards against abuse. As an

aspect o the rule o law it should include prompt, ull and eectivescrutiny o the validity o the restriction by an independent court,tribunal or other independent adjudicatory body.

(c) Any restriction on reedom o expression that the State seeks to justiyon grounds o protection o copyright interests must have the genuinepurpose and demonstrable eect, on the basis o independent evidence,o protecting the ends that copyright seeks to achieve, as expressed inthe Preamble.

(d) A restriction on reedom o expression is proportionate in a democraticsociety only i:

i It is the least restrictive means available or protecting thatinterest; and

ii The restriction is compatible with democratic principles.

1.5 States must not only rerain rom interering with reedom o expression butare also under a positive obligation to protect reedom o expression romintererence by private parties.


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Principle 2: Copyright

2.1 Copyright is an exclusive, transerable right given to a creator or a xed number

o years to copy, print, publish, perorm, lm, record or otherwise control theuse o literary, musical, dramatic or artistic works. Rights related to copyrightsubsist, among other things, in lms, sound recordings, broadcasts and writtenworks.

2.2 Copyright does not protect ideas or inormation but rather their expression,provided such expression reaches a certain threshold o originality as regardsliterary, musical, dramatic and artistic works.

2.3 Copyright enjoys limited protection under international human rights law aspart o the right to property; like the right to property itsel, it is not an absolute

right. In particular, States may enorce such laws as they deem necessary tocontrol the use o property, including copyright, in accordance with the generalinterest or to secure the payment o taxes or other contributions or penalties.

2.4 States have a wide discretion in restricting the right to property or the purposeso implementing social, economic and cultural policies. This should includecopyright policy.


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Principle 3: Principles o Interpretation

3.1 Freedom o expression and copyright are complementary inasmuch as the

purpose o copyright is the promotion o literary, musical and artistic creativity,the enrichment o cultural heritage and the dissemination o knowledge andinormation goods to the general public.

3.2 In determining whether a restriction on reedom o expression based oncopyright grounds is justied, the ollowing actors must be taken into account:

(a) The discretion aorded to States in imposing restrictions on reedomo expression is narrower than that granted in respect o restrictions onproperty rights, including copyright.

(b) Limitations on copyright, including air dealing, must be interpreted

broadly so as to give meaningul eect to the right to reedomexpression and inormation.

(c) Digital copies o a work are non-rival goods. Thereore, accessing acultural good online, including by downloading it, without authorisationdoes not deprive the copyright owners o their interest in or possessiono their property, although it may interere with their enjoyment o it.

(d) I cultural goods are downloaded online in breach o copyright, the lacko lawul availability o those goods within that jurisdiction shall be arelevant actor in determining any remedies or the copyright holder

against such unauthorised use o cultural goods.(e) The impact o the restriction on the right to reedom o expression must

be careully scrutinised. The burden o proving that the restriction isproportionate to the protection o copyright interests rests with the stateand/or the copyright holder.


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SECTION II

Protection o the public domain


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Principle 4: General principles

4.1 The public domain is the net sum o all inormation and cultural goods not

subject to copyright that can be used and exchanged by the public at largewithout restrictions. It is part o the cultural heritage o all humankind thatmust be preserved.

4.2 Once inormation and cultural goods all into the public domain, they mustremain in the public domain indenitely.

Principle 5: Copyright duration

5.1 The term o copyright duration should last no longer than is necessary to

achieve its purpose without impairing the right to reedom o expression.

5.2 Copyright protection beyond the lie o the author should be consideredan unjustied restriction on the public domain and the right to reedom oexpression and inormation and should be abolished.


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Section III

Copyright exceptions


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Principle 6: Fair dealing and derivative works

6.1 Limitations and exceptions to copyright, especially air dealing, should be

interpreted broadly so as to give greater protection to the right to reedom oexpression.

6.2 Creative and transormative uses o original works subject to copyright shouldbenet rom broad protection under the air dealing exception to copyright.

Principle 7: The right to personal enjoyment o cultural goods

7.1 The right to receive and impart inormation and ideas includes the right topersonal enjoyment o cultural goods, which itsel implies the personal right to

read, listen to, view and browse cultural goods without copyright restrictions,including doing so online.

7.2 The sharing o cultural goods, including those obtained online, should not bemade subject to undue copyright restrictions or enorcement.


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SECTION IV

Freedom o expressionand copyright enorcementin the digital environment


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Principle 8: Disconnection rom access to the Internet

Disconnection rom access to the Internet on grounds o copyright is always a

disproportionate restriction on the right to reedom o expression.

Principle 9: Filtering and blocking o content subjectto copyright

9.1 Filtering, blocking, removal and other technical or legal limits on access tocontent are serious restrictions on reedom o expression and can only bejustied i they strictly comply with the three-part test under international law.

9.2 Website blocking on grounds o copyright protection should be considered a

disproportionate restriction on reedom o expression because o associatedrisks o over-blocking and the general lack o eectiveness o this measure.

9.3 Insoar as website blocking may already be permitted by law, this measureshould only be imposed by courts or other independent adjudicatory bodies. Indetermining the scope o any blocking order, the courts or adjudicatory bodiesshould address themselves to the ollowing:

(a) Any blocking order should be as targeted as possible;

(b) No blocking order should be granted unless the rights holder seekingthe order has established copyright in the works which are said to be

unlawully accessed;

(c) No blocking injunction should be granted beyond the works in whichcopyright has been established by the rights holders;

(d) Whether the blocking order is the least restrictive means available tobring an end to individual acts o inringement including an assessmento any adverse impact on the right to reedom o expression;

(e) Whether access to other non-inringing material will be impeded andi so to what extent, bearing in mind that in principle, non-inringingcontent should never be blocked;

() The overall eectiveness o the measure and the risks o over-blocking;

(g) Whether the blocking order should be o limited duration;

(h) Website blocking orders to prevent uture copyright inringements are aorm o prior censorship and as such are a disproportionate restrictionon reedom o expression.

9.4 Because o their potential adverse eect on internet users right to reedomo expression, there should be procedures in place allowing consumer groupsor other interested parties to intervene in injunction proceedings in which a

blocking order is sought.


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9.5 Knowingly submitting a court application or blocking o content withoutcopyright should be penalised and those harmed by such applications shouldbe compensated. The same applies to overbroad and negligent blocking

applications.

Principle 10: Intermediary liability and content removal

10.1 Internet intermediaries play a vital role as gatekeepers o the Internet andacilitators o the ree exchange o inormation and ideas online.

10.2 Intermediaries which provide services, such as providing access, or searchingor, or the transmission or caching o inormation, should not be liable orinringing content disseminated by third parties using those services.

10.3 Intermediaries should not be required to monitor their services to preventcopyright inringement.

10.4 Laws governing the liability o intermediaries in respect o inringing contentmust contain due process saeguards sucient to protect reedom o expressionand the right to privacy. In principle, intermediaries should only be required toremove inringing content i the measure is provided by law and ordered by acourt, tribunal or other independent adjudicatory body in accordance with therule o law.

10.5 Intermediary liability provisions, known as notice-and-takedown, which give

an incentive to hosting services to remove content without proper notice orevidence o actual inringement, have a chilling eect on reedom o expression.Insoar as such provisions are already in place, they should be interpreted in away that is maximally compatible with the requirements o the right to reedomo expression, including:

(a) Only copyright owners or their authorised representatives should beallowed to le notices o alleged inringement;

(b) Copyright in the allegedly inringing content must be established;

(c) The notice o complaint must be specic, including details o each act

o inringement, location o the inringing material and date and time othe alleged inringement;

(d) The alleged inringer should be inormed o the copyright notice;

(e) A right o counter-notice should be provided and clearly explained;

() Eective remedies should be available to challenge impropertakedowns, including through clearly accessible internal appealsmechanisms and/or through the courts;

(g) Abusive or negligent copyright notices should be penalised and

compensation paid to the injured party.10.7 Because unjustied content removals aect the publics right to receive

inormation as well as the right o individuals to express themselves, takedown


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requests and decisions should be transparently documented and available tochallenge by both the content publisher and members o the public.

10.8 Consideration should be given to adopting rules, such as notice-and-notice,which only require intermediaries to pass on complaints about copyrightinringement to the alleged inringing party without taking down the material atissue upon notice.

Principle 11: Civil liability or copyright inringement

11.1 Only actual damages suered by copyright holders should be recoverable.Where statutory damages are available, they should be capped or non-commercial inringement so as not to impose a disproportionate restriction on

reedom o expression.

11.2 Imposing large non-compensatory damages or litigation costs or copyrightinringement or non-commercial purposes is likely to constitute adisproportionate intererence with the right to reedom o expression.

11.3 Abusive claims o online copyright inringement, and the threat o litigation inrelation o the same, should be penalised as they have a chilling eect on theright to reedom o expression.

Principle 12: Criminal liability12.1 Criminal sanctions or non-commercial copyright inringement have a

chilling eect on the ree fow o inormation and ideas and as such are adisproportionate intererence with the right to reedom o expression. Theyshould be abolished in their entirety and replaced by civil remedies whereappropriate.

12.2 As a practical matter, to the extent that many States impose criminal sanctionsor copyright inringement, immediate steps should be taken to ensure that anycriminal laws still in orce conorm ully to the ollowing requirements:

(a) Oences or copyright inringement may only be compatible with theright to reedom o expression and inormation i they have a clear legalbasis, each element o the oence is clearly dened and the range osentences available are proportionate to the seriousness o the oence.

(b) There is no public interest in bringing a prosecution in non-commercialcopyright inringement cases. Thereore, law enorcement authoritiesshould not initiate such prosecutions.


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(c) Prison sentences, suspended prison sentences, excessive nes andother harsh criminal penalties should never be available as a sanctionor non-commercial copyright inringement.

12.3 The criminalisation o circumvention o digital rights management sotware isan unjustied restriction on reedom o expression and should be abolished.


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SECTION V

Measures promoting accessto knowledge and culture


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Principle 13: Promoting access to knowledge and culture

13.1 States have a positive obligation to promote the right to reedom o expression

and access to inormation, and any legal ramework to protect copyright mustrefect this.

13.2 Creators have a legitimate expectation o a legal ramework which encouragestheir ability to seek remuneration or their work and which also respects andpromotes the right to reedom o expression.

13.3 Measures such as Creative Commons, whereby creators waive some o theirrights in their works, allow greater access to culture or the wider public andshould thereore be promoted.

13.4 Copyright exceptions should be interpreted broadly so as to allow libraries,

broadcasters, museums and other cultural public spaces to digitise and makeavailable online, ree-o-charge or at low cost, the widest possible range ocontent.

13.5 Substantially publicly-unded works should be recognised as a public good andthereore made widely available to the public, including online. The unding osuch works must be transparent and the public must have access to inormationon what works are publicly unded.

13.6 States must ensure that people with disabilities have equal access toknowledge. The lack o copyright exceptions beneting people with sensory

impairments is likely to constitute a breach o their rights to reedom oexpression, private lie and their right to participate in cultural lie.

13.7 Equal access to knowledge by people o all languages and levels o literacyshould be promoted. The lack o copyright exceptions beneting minoritylanguage speakers and persons with low literacy levels undermines their rightsto reedom o expression, private lie and their right to participate in culturallie.


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SECTION VI

Transparency and accountabilityin copyright policy-making


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Principle 14: Transparency and accountabilityin negotiation o international agreements

14.1 Treaties, multi-lateral, bi-lateral and any other agreements entered by Statesconcerning copyright protection aect undamental human rights. Prior tosigning and ratiying such treaties or agreements, States must ensure thatthey do not impose obligations inconsistent with their international humanrights obligations, including the right to reedom o expression. This should becompleted by ex post human rights impact assessment.

14.2 Where an incompatibility with human rights obligations is ound, States shouldconsider a variety o measures, including but not limited to the ollowing:

(a) Termination o the treaty or agreement;

(b) Amendment o the treaty or agreement;

(c) Insertion o saeguards in the treaty or agreement;

(d) Adoption o mitigation measures.

14.3 The negotiation, drating and adoption o such treaties and agreements mustbe transparent and subject to democratic processes with ull participation o allstakeholders concerned.

Principle 15: Transparency and evidence incopyright policy-making

15.1 Copyright policy-making must be transparent and evidenced-based.

15.2 Voluntary cooperation and other private agreements between intermediaries andrights holders must be transparent and ensure respect or undamental rights,including the right to reedom o expression.


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Appendix A

The ollowing individuals were among those who participated at the London meetingsand/or in discussions that produced these Principles. All individuals participatedin their personal capacity; organisations and aliations are listed or purposes oidentication only.

Agnes Callamard, ARTICLE 19, United KingdomAndrew Puddephatt, Global Partners and Associates, United KingdomAndrew Smith, ARTICLE 19, United KingdomAnte Wessels, Vrijschrit, the NetherlandsAntonio Martnez Velzquez, ARTICLE 19 Mexico and Central America, MexicoBarbora Bukovska, ARTICLE 19, United KingdomBrett Solomon, Access Now, United States o AmericaCamila Marques, ARTICLE 19 Brazil and South America, BrazilDavid Banisar, ARTICLE 19, United KingdomDixie Hawtin, Global Partners and Associates, United KingdomGabrielle Guillemin, ARTICLE 19, United KingdomJrmie Zimmermann, LaQuadrature du Net, FranceJim Killock, Open Rights Group, United KingdomJoe McNamee, EDRI, BelgiumLaura Tresca, ARTICLE 19 Brazil and South America, Brazil

Michael Camilleri, Oce o the Special Rapporteurship or Freedom o Expression,Organization o American States, United StatesMichael Geist, Internet and E-commerce Law at the University o Ottawa, CanadaPeter Bradwell, Open Rights Group, United KingdomPranesh Prakash, Center or Internet and Society, IndiaRaegan MacDonald, Access Now, BelgiumSaskia Walzel, Consumer Focus, United KingdomShihanya Bernard, Intellectual Property, Constitutionalism & Education Law, Universityo Nairobi Law School, KenyaTahmina Rahman, ARTICLE 19 Bangladesh, BangladeshWalter Von Holst, EDRI, the NetherlandsWendy Seltzer, World Wide Web Consortium and Yale Law Schools Inormation SocietyProject, United Statesenet Mujic, Oce o the OSCE Representative on Freedom o Media, AustriaYaman Akdeniz, Faculty o Law, Istanbul Bilgi University, Turkey


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A19 Right to Share Principles

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