Some thoughts related to the question of human rights, moral rights and intellectual property that Stunlaw has been thinking about recently.
Following Hegel in believing that outside of the state there cannot be ‘freedom’ as ‘freedom’ requires laws in order to create a ‘state of freedom’ in the first place:
1. Therefore copyrights as such are instantiated within positive law and it can only be in relation to them that we can have any rights at all. Thus, the state grants certain rights within intellectual property and can set these rights however long or short as it wishes. This is, though, subject to political contestation whereby we as citizens are able to argue and politically come to some agreement about a suitable length.
2. A liberal democratic state is predicated on the principle of a public sphere that gives access to information that can be used in this contestation. Additionally, creativity requires a certain ability to reuse and re-invigorate old works.
3. Property rights and democratic political rights are therefore clearly here in direct contradiction. This can only be resolved through certain necessary exception to the intellectual property rights (such as fair-usage) and term-limits. This is why we see such concern with these issues by classical scholars such as Locke, Jefferson etc.
4. The value of intellectual property is increasing due to our greater reliance on information and knowledge (and entertainment) and therefore there is a general obfuscation of the difference between the physical and immaterial property in order to make the discursive case that they are the same (when clearly they are not – (i.e. non-rivalrous, infinitely reproducible, zero/near-zero marginal cost etc etc). This is to make as much money as possible from ownership.
5. Therefore the difficulty is magnified when you realise that it is multinational corporations that are particularly benefiting from these intellectual property rights, and that to a certain extent, our interest in political contestation of their property rights is anathema to their wishing to make as much profit as possible. They therefore seek to show that copyrights are ‘good’ for democracy by the roundabout way of demonstrating the quantitative number of products they make and downplaying the qualitative mediocrity/sameness of much of it.
6. We therefore have the spectacularly interesting situation that in effect multinational corporations are acting contra to the very basis of democratic political rights by seeking to own extensive rights to information, knowledge and so on. This is an extremely interesting contradiction in the ‘mode of communication’.
However, the basis of the argument is extremely difficult to get across as people are now simply making the assumption that copyright IS property. Additionally Governments are listening very keenly to the multinationals and to the US (which since it become a net exporter of intellectual property has suddenly changed its stance vis a vis full-on protection – it only signed the Berne convention in 1989 for example).
So to cut a long answer short, are human rights can be a way of arguing out of IP? Well, possibly through an argument about access to knowledge etc. However, the difficulty is “what is knowledge?” – i.e. American judges are very keen to try to keep a distinction between information and entertainment and this is something the corporations play on. Are they the same thing? Where is the borderline etc.
Plus, when you are a government concerned about globalisation, threats of job losses, tax losses etc etc. The talk about new clean sunrise industries, 21st century production and the creative/networked/knowledge economy and the discourse of the information society sounds very interesting indeed. Something that costs very little (i.e. legislation to strengthen IP), can be sold to voters (who wants to work in a factory afterall) and looks like the leaders are actually forward thinking and at the cutting edge (i.e. the UK talk from the DCMS about the ‘creative’ economy).
It is difficult to argue against something that seems to promise so much. Especially when the content industry can put prices on everything (i.e. politicians like hard numbers) whereas the anti-IP people talk about issues like access, democracy and freedom of expression, that to be fair it is difficult to cost in the same way and its hard to see at first glance why they might be affected. Also, frankly the content industry is winning the battle to persuade people that IP and physical property are the same thing.
But anyway, the other question raised is whether moral rights could be used as a defence against copyright terms etc. Well, it seems the answer is not in the short-term as moral rights cause all sorts of problems for the sharing of information themselves (i.e. paternity, integrity) and they might actually serve to strengthen the case for property rights (i.e. by a kind of Hegelian argument that your work is a part of your personality or self).