Use UN day to reflect on mis-interpretations of Universal Declaration of Human Rights

United Nations Day was proclaimed in 1948 by the United Nations General Assembly. It is held annually on 24 October, the anniversary of the coming into force of the UN Charter on 24 October 1945. 2008 is also the 60th anniversary of the Universal Declaration of Human Rights (UDHR).

This makes tomorrow an ideal time to reflect on what many consider to be a misinterpretation of the UN UDHR that has lead to many of the technology policy debates today.

The UDHR contains the following text in Article 27(2):

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

This was the basis of founding in 1967 the World Intellectual Property Organization (WIPO). This is a specialized agency of the United Nations. It claims that its recent strategic goal is of “promoting a Balanced IP System and Realizing Its Development Potential”. I suspect people who look at recent treaties would disagree that they are achieving that balance. This is especially true of the two most recent of the 6 WIPO copyright related treaties. Instead, the organization has been promoting a maximalist system of Patent, Copyright, Trademark (PCT) and related rights.

Many believe that WIPO has fallen prey to a form of regulatory capture, in that they are servicing the needs of their “clients”. Their “clients” are those who pay money into their budget. WIPO is unique among UN organisations in how it is funded. Approximately 90% of WIPO’s 2006-2007 budget comes from the fees its charges for international trademark registrations and patent applications. The remaining 10% are fees for its arbitration and mediation services, publications, and from small contributions from member states. While it is PCT rights holders which pay WIPO’s bills, they represent an extremely narrow set of interests that WIPO should be representing.

If the PCT system is intended to be “balanced”, it is obvious to ask what are the different interests are that should be balanced?

The UDHR itself gives some hints, including in the first half of Article 27:

“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

Participate, enjoy, share. It seems that those who wish to participate, enjoy and share are quickly called theives by the very special interest groups in the entertainment and software manufacturing industry that dominate the policy discussions at WIPO.

This is why I have been saying that a historically consistent response to recent technological changes would be to use compulsory licenses for socially beneficial uses of creativity where the current copyright holders are refusing to license, and to carve out of copyright activities which are truly private in nature. This would mean that the remix and non-commercial sharing culture would be legalized and compensated through simple compulsory licensing, and the technology used to participate, enjoy, and share would be fully under the control of average citizens and not any third party.

This is simply the balance of article 27 which is forgotten. There are other articles implicated by recent WIPO treaties, including Article 19:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In the comments to a ComputerWorld Canada article talking about Copyright and the election, someone suggested that “Net Neutrality is a bigger issue than Copyright Reform”.

The worry in Net Neutrality is that powerful technology intermediaries, in this case phone and cable companies offering Internet services, will exert control over this communications medium for their own special interests. The companies claim they are simply managing traffic which is too much for the allegedly costly network connections. It is often the case that the technologies they are using to deep packet inspect (DPI) and make decisions about the packets are more expensive than simply adding network capacity would be. They have ulterior motives to creating a congestion problem, and then acting as an intermediary that will exert editorial control over what information receives priority or is able to be communicated at all.

This problem of a technology provider exerting editorial control is nothing new. It was independent film makers fleeing Thomas Edison’s patents on the movie making technology that brought these independents together in what is today called Hollywood, California. These independent studios needed in 1909 a form of neutrality from the technology providers which was not provided by the legal system protecting Edison’s patents. These patent monopolists were eventually found guilty of anti-trust in 1915, but it was the existence of the “pirates” in Hollywood that enabled the courts to understand the problem.

The two most recent WIPO treaties have similar provisions, known as “legal protection for technological measures”. These measures can be seen as the combination of two locks: an anti-competitive lock on content such that it is only interoperable with “authorized” access devices, and a lock on devices such that the manufacturers and not the owners ultimately control them.

This second lock should sound familiar. It is a technology provider exerting control over a communications technology for their own special interests. We need to recognize that policy debates around technological measures, the creation of technology monopolies through excessive patent/copyright expansion, and net neutrality are in fact the same policy issue. The only difference is the specific technology being influenced.

In the specific case of technological measures the technology providers are alleging that they are protecting copyright, but anyone who understands how the technology works will quickly realize that it fails at that goal. Like the traffic management claims of the ISPs, the claim that these digital locks reduce copyright infringement are simply a distraction. Pay no attention to the man behind the curtain locking down your communications technology…

There are other articles of the UDHR which are contradicted by the recent WIPO treaties. When we are talking about digital locks applied to our own technology, another fairly obvious one is article 17:

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

Trying to protect the rights of information technology owners was the basis of our petition to protect these rights. These are property rights which even the Conservative party has thus far chosen to abandon.

I welcome everyon

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Jim Love, Chief Content Officer, IT World Canada

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