This week we open it up with a Guest Post from David Felipe Alvarez Amezquita, a Colombian lawyer currently working on his PhD at University of Nottingham.
Explain that to me, ‘despacito’ –step by step-
Copyright and
politics. Why is important for an author to keep his rights?
In support for the elections to the constitutional assembly
that was recently voted in Venezuela, during a rally, President Maduro
publicly used a
transformed version of the song “
Despacito”.
The song, an unprecedented hit this year, has been used on many occasions, but
this particular case has created the total rejection from its authors.
Luis Fonsi said it clearly: “I have never been consulted nor
I have given permission for the change or use of the lyrics of
<<Despacito>> for political purposes…” See
here
(Spanish).
This has not been the first case, though. During the recent
presidential race in the US, the use of certain songs by Trump’s campaign was
fiercely
rejected.
This has been a clear example of how the role that authors
play in the protection of copyright goes beyond the mere economic interests and
touches the limits of freedom of expression and the exercise of democracy. But,
what if the rights of the author do not belong to her or him anymore?
The
General
Comment 17, on “The right of everyone to benefit from the protection of the
moral and material interests resulting from any scientific, literary or
artistic production of which he or she is the author (article 15, paragraph 1
(c), of the Covenant)” published by the Committee on Economic, Social and
Cultural Rights, highlights the fact that author’s moral interests should be
understood as the protection of the “intrinsically personal character of every
creation of the human mind”. This results in the right to be recognised as the
creator of the works and the right to object any distortion, mutilation or
other modification or derogatory action that would be prejudicial to author’s
honour and reputation.
Nevertheless, in some cases, moral rights can be transferred
or eventually waived. The legal tradition in which continental copyright
(author’s rights) is inscribed avoid this possibility. Instead, the legal
tradition for common law copyright allows that these rights can be transferred
or waived. For instance, most, if not all of the
Latin
American countries protect author’s moral rights under conditions of
inalienability, non-waiver, and perpetuity. Instead, the US has developed a
complex system of protection of moral rights to produce conformity with their
adhesion to the Berne Convention, article 6.2. (See for example the case of
visual arts,
Section 106). The
UK, on the other hand, prohibits the assignation of the moral rights but
accepts their waiving under written contract (
sections 94 and 87).
Why is this important? Because moral rights have not been a
peaceful issue in the international arena. One of the best examples of this is
the express exclusion of these rights from the main elements of protection of
copyright within the
TRIPS
agreement. By this way, moral rights have been situated outside of the
international trade law. Instead, on the area of human rights, author’s moral
interests have been enacted since the UDHR. How these two spheres interact on
this matter is a question yet to be solved.
In this
video
time lapse, it can be seen how different countries have accessed to the
international systems that protect copyright and author’s human rights. It
calls the attention that it was not until the late 1980’s that the US adhered
to the Berne Convention and that once they did, in the next decade the TRIPS
agreement was adopted and the cascade of countries following this was
immediate. A similar cascade occurred when the ICESCR was adopted, but the US
was out of it (this country signed the Covenant but has never adopted it).
Unfortunately, the ICESCR lacks on swift tools of enforceability that the TRIPS
agreement has.
Nevertheless, protecting author’s moral interests can impact
areas situated beyond commerce and closer to democracy. This shows that the
interface between human rights and copyright towards the protection of author's
fundamental rights is not something to disregard.
Even if in some cases countries with a continental tradition
have tilted their policies towards a possible transferability or waiver of
moral rights, as in the case of works created by a commission or under
employment, it looks like a weak author within society is bad for democracy and
not only for business.
David's research is related to the protection of author’s
fundamental rights through copyright in a comparative perspective. He has been
awarded the COLCIENCIAS and the University of Tolima scholarships for doctoral
studies. He has worked as researcher and lecturer in HEIs in Colombia, as Head
of the Register Office of Copyright and as Copyright Advisor for
CERLALC-UNESCO.
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