1. Are Moral Rights Human Rights?
(and does it matter?)
Graham Smith, IP/IT Partner, London
@cyberleagle
12 February 2014

2. Sources of human rights obligations

3. Sources of human rights obligations
● Universal Declaration of Human Rights (1948)
• Non-binding declaration
● European Convention on Human Rights (1952)
• Binding treaty
• EU and UK domestic law
● International Covenant on Civil and Political Rights
(adopted 1966)
• Binding treaty
● International Covenant on Economic, Social and Cultural
Rights (adopted 1966)
• Binding treaty
● EU Charter of Fundamental Rights (2009)
• EU law (but UK?)
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4. Types of human rights obligation

5. Three main types of human rights obligation
Negative
1. Abstain
from acts of
interference
Direct
N/A
State
2. Obligation to
act as between
State and
individual
Positive
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Horizontal
3. Obligation
to act to secure
rights as
between
individuals

6. ECHR Article 1 Protocol 1

7. Human rights obligations – ECHR A1 P1
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8. Human rights obligations – ECHR A1 P1
Art 1 Prot 1
(possessions)
Negative obligation (abstention
from interference)
Implied positive
obligation
Categorisation: Is there something which qualifies as a possession
within A1 P1 autonomous meaning?
Interference: Incidents of property? Expectations?
Direct
Interference by infringement
without compensation (Balan v
Moldova) ("right recognised by
law and by a previous final
judgment.")
Failure to redeem a
government bond
(Lobanov v Russia)
Bilateral treaty post-dating trade
mark application (Anheuser
Busch) ("entitled to expect that it
would be examined under the
applicable legislation.")
Direct (quasihorizontal)
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Domestic judicial proceedings; Court action/inaction re
claimant's property + interference with defendant's
physical possessions (e.g. Levi Strauss v Tesco)

9. A1 P1: It’s not about designing IP rights
Possessions
Land, physical goods
Assets: constituting a
substantive interest protected
by A1 P1
Claims: legitimate
expectation under settled
national law of obtaining an
asset
Peaceful enjoyment of
existing property
Enjoyment of the
appropriate incidents of
property
Appropriate remedies
Land, lease, shares, bonds, patents, copyright, trade
mark applications and registrations, debt, drinks
licence, cinema clientele, business goodwill, domain
name registrations, telecoms licences, final
court/arbitration award, interest in pension scheme
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Expropriation
Extinction
Shifting the goalposts
Incidents of property
Judicial process:
ECtHR: No A1 P1
interference unless decision
arbitrary or otherwise
manifestly unreasonable
Remedies:
E.g. State’s refusal to enforce
court orders; not failure to
develop remedies. (OBG v
UK)

10. Article 17 EU Charter
Article 17 is in 'updated' terms from A1 P1
"Right to property
1. Everyone has the right to own, use, dispose of and bequeath
his or her lawfully acquired possessions. No one may be
deprived of his or her possessions, except in the public interest and in
the cases and under the conditions provided for by law, subject to fair
compensation being paid in good time for their loss. The use of
property may be regulated by law in so far as is necessary for the
general interest.
2. Intellectual property shall be protected."
● Article 52(3): "the meaning and scope of the right are the same as those of
the right guaranteed by the ECHR"
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11. ECHR Article 8

12. Human rights obligations – ECHR Art 8
Article 8 (private
life etc)
Negative (abstention
from interference)
Implied positive
(affirmative obligation)
Direct
State phone tapping,
surveillance, court
orders (e.g. order to
disclose information,
including in private
litigation).
Insecure government
database containing personal
information?
Horizontal
(Supplementary)
N/A
Protect from privacy and
reputation violations by
others (Not unlimited scope
e.g. Mosley v UK)
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13. Human rights obligations – ECHR Art 8
Positive horizontal obligation
• “direct and immediate link” between the measure requested
and the applicant’s private life” (Botta)
• “prudent approach” (Mosley) (!)
• “… although the object of Article 8 is essentially that of protecting
the individual against arbitrary interference by the public
authorities, it does not merely compel the State to abstain from
such interference:
• in addition to this primarily negative undertaking, there may
be positive obligations inherent in effective respect for private
and family life.
• These obligations may involve the adoption of measures designed
to secure respect for private and family life even in the sphere
of the relations of individuals between themselves.”
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14. The ever-expanding ECHR Article 8
Reputation
“… the guarantee afforded by Article 8 of the Convention is primarily
intended to ensure the development, without outside interference, of the
personality of each individual in his relations with other human beings…. a
person's right to protection of his or her reputation is encompassed by
Article 8 as being part of the right to respect for private life.” (Pfeifer)
Moral rights?
“ … the intrinsically personal character of every creation of the human
mind and the ensuing durable link between creators and their creations. …
The Committee stresses the importance of recognizing the value of scientific,
literary and artistic productions as expressions of the personality of their
creator, and notes that protection of moral interests can be found,
although to a varying extent, in most States, regardless of the legal system in
force. (ICESCR General Comment 17)
But not copyright?
Unlike other human rights, the material interests of authors are not
directly linked to the personality of the creator” (ICECSR General
Comment 17)
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15. ECHR Article 10

16. Human rights obligations – ECHR Art 10
Article 10
(freedom of
expression)
Negative (abstention
from interference)
Implied positive
(affirmative obligation)
Direct
State censorship;
abridgement; court
orders, including in
private litigation
(Barthold – injunction
in unfair competition
action "clearly an
interference by public
authority").
Promotion of freedom of
expression. (Centro Europa
7 v Italy TV frequencies)
Horizontal
(Supplementary)
N/A
Protect from interference
by others. (e.g. dismissal
from employment (Fuentes
Bobo), or violent campaigns
(Özgür Gündem), resulting
from exercise of right of
expression.)
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17. Does it matter if it is a human right?

18. When does it matter if it is a human right?
Scenario
Does it matter if it is a Convention right?
Victim of direct state
interference with
rights (negative or
positive)
Yes. Either (a) autonomously protected substantive
Convention right or (b) a national law interest
qualifying as a possession under A1 P1. May include
a positive non-horizontal obligation (Lobanov).
Failure by state to
protect guaranteed
rights from
interference by others
(horizontal)
Yes. No basis for complaint to ECtHR unless there
is (a) a positive obligation (b) to secure a substantive
Convention right (c) to the extent claimed (d) with
horizontal effect.
e.g. disappointed privacy/defamation plaintiffs
Alleged interference
with Convention
rights of another
(horizontal)
Proceedings claiming
infringement of right
(Convention or
otherwise)
No? Once a Convention right is engaged, both
Convention rights and private rights protected by
national law are taken into account in the balancing
exercise.
Art 8: “Necessary … for the protection of the rights
and freedoms of others”
Art 10: “Necessary… for the protection of the
reputation or rights of others’.
e.g. copyright or privacy defendant invokes Art 10
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19. Balancing
National
law right
Prescribed by law
Convention
right (if any)
Legitimate aim
Necessary in a
democratic society
(Proportionality)
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Engagement
Privacy
Freedom
of
expression
[Freedom
to conduct
business]

20. Moral rights and international human rights

21. Moral rights and international human rights
● 1948 UDHR Art 27 (1) 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. (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.
● 1966 (adoption) ICESCR Art 15(1) … recognize the right of everyone:
(c) To benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the
author.
• But 15(1) “(a) To take part in cultural life; (b) To enjoy the benefits of
scientific progress and its applications;”
● 1948 UDHR Art 12 No one shall be subjected to ... attacks upon his
honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks.”
● 1966 (adoption) ICCPR Art 17 “No one shall be subjected to …
unlawful attacks on his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks. (and Art
19 – freedom of expression).
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22. Moral rights and international human rights
● General Comment 17 on ICESCR 15(1)(c)
• Reflects Berne Convention
“… the Committee considers that “moral interests” in article 15, paragraph 1
(c), include the right of authors to be recognized as the creators of their scientific,
literary and artistic productions and to object to any distortion, mutilation or
other modification of, or other derogatory action in relation to, such
productions, which would be prejudicial to their honour and reputation.”
• BUT
“… it is intrinsically linked to the other rights recognized in article 15 of the
Covenant … . The relationship between these rights and article 15, paragraph 1
(c), is at the same time mutually reinforcing and reciprocally limitative.”
● General Comment 21 on ICESCR 15(1)(a)
“The Committee also wishes to stress the need to take into consideration existing
international human rights standards on limitations that can or cannot be
legitimately imposed on rights that are intrinsically linked to the right to take
part in cultural life, such as the rights to privacy, to freedom of thought,
conscience and religion, to freedom of opinion and expression, to peaceful
assembly and to freedom of association.”
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23. All roads lead to ECHR Article 10
● If moral rights are required by ICESCR Art 15(1)(c) (protection of
moral and material interests)
• Reciprocally limited by Art 15(1)(a)
• Which is recognised to include freedom of expression
• Which is also required by ICCPR Art 19
● If moral rights are required by ICCPR Art 17 (unlawful attacks on
honour and reputation)
• Balanced with ICCPR Art 19
● If moral rights are required by ECHR Art 8 ( respect for private
and family life)
• Balanced with ECHR Art 10
● To the extent that moral rights are required by Berne
(derogatory action prejudicial to honor or reputation)
• States are also bound by ICESCR and ICCPR
• Non-conflicting interpretation
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24. We used to think we can ignore Article 10
"Copyright laws are not restrictions on freedom of speech
as copyright protects only form of expression and not the
ideas expressed"
Sup. Ct. Brennan J. N.Y. Times v United States
1971
Copyright law contains built-in First
Amendment accommodations (idea/expression dichotomy
and fair use)
Sup. Ct. Harper & Row v Nation Enterprises
1985
2000
"Copyright does not lie on the same continuum as, nor is
it the antithesis of, freedom of expression."
Mance L.J. Hyde Park v Yelland
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25. But no longer (in Europe)
2001
2011
2013
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"Thus copyright is antithetical to freedom of expression. It
prevents all, save the owner of the copyright, from
expressing information in the form of the literary work
protected by the copyright.“ [S171(3) CDPA]
Court of Appeal (Lord Phillips) Ashdown v Telegraph Group Ltd
"… The protection of the right to intellectual property is
indeed enshrined in Article 17(2) of [the EU Charter].
There is, however, nothing whatsoever in the wording of
that provision or in the Court’s case-law to suggest that that
right is inviolable and must for that reason be absolutely
protected. … the protection of the fundamental right to
property, which includes the rights linked to intellectual
property, must be balanced against the protection of other
fundamental rights." CJEU, SABAM v Scarlet
Publication of photographs on a fashion website was
exercise of freedom of expression and conviction for
copyright infringement interfered with that. ECt HR , Donald
Ashby.

26. Integrity right and freedom of expression

27. Integrity right and freedom of expression
the right … not to have his
work subjected to
derogatory treatment..
“treatment” of a work
means any addition to,
deletion from or alteration
to or adaptation of the work,
other than […]
and (b)the treatment of a
work is derogatory if it
amounts to distortion or
mutilation of the work
or is otherwise
prejudicial to the
honour or reputation of
the author or director;
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28. Integrity right and freedom of expression
the right … not to have his
work subjected to
derogatory treatment..
“treatment” of a work
means any addition to,
deletion from or alteration
to or adaptation of the work,
other than […]
and (b)the treatment of a
work is derogatory if it
amounts to distortion or
mutilation of the work
or is otherwise
prejudicial to the
honour or reputation of
the author or director;
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29. Integrity right and freedom of expression
the right … not to have his
work subjected to
derogatory treatment..
"Subject a para.
“treatment” oftowork 2 of Article 10, [freedom of expression] is
applicable not only to “information” or “ideas” that are
means any addition to,
deletion from or alteration or regarded as inoffensive or as a
favourably received
to or adaptation of the work, but also to those that offend,
matter of indifference,
other than […]
shock or disturb the State or any sector of the
and (b)the treatment of a
population. if it
work is derogatorySuch are the demands of that pluralism,
tolerance and or
amounts to distortion broadmindedness without which there
mutilation of the work
is no democratic society." (Handyside etc)
or is otherwise
prejudicial to the
honour or reputation of
the author or director;
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30. How does the integrity right accommodate
Article 10?

31. Integrity right and freedom of expression
Defamation
Copyright
Injury to reputation
Copying, communication to the Derogatory treatment
public, issue of copies to the (prejudicial to honour
public, etc
or reputation)
X
[Table]
Art 10
issue
Serious
ness
Threshold
condition
Serious harm
Integrity right
Exception
Incidental inclusion
X
Facts
Defence
Truth
Exception
Fair
dealing
for X
purpose of reporting
current
events
(photographs
excluded)
Opinion
Defence
Honest opinion Exception
Fair
dealing
for X
purposes of criticism
or review
Jokes,
parody
etc
Scope
Exception
(forthcomi
ng)
Parody
Public
interest
Defence
Jokes – would
reasonable
reader take it
seriously?
Publication on
matter
of
public interest
Defence
S171(3) + common Common law?
law
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Scope?

32. Thank you
Graham Smith
@cyberleagle
graham.smith@twobirds.com
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