In the first post on the theme of Public Interest, Daithí Mac Síthigh presents research into freedom of expression and other human rights in the context of copyright, for our Research Blog Series.
Project: Human rights and the public interest
Investigators: Emily Laidlaw (East Anglia, now Calgary), Daithí Mac Síthigh (Edinburgh, then Newcastle, now QUB) and Yin Harn Lee (East Anglia and Cambridge, now Sheffield) (RA)
What did your research aim to do?
We aimed to identify what freedom of expression means in the context of copyright, and how this informs the understanding of other human rights in the context of copyright. A particular concern was how issues of speech, expression and communication have been treated over time, in different jurisdictions, and in relation to varying business models. We sought to identify what role freedom of expression should have in facilitating new business models, and whether there is a need for a public interest exception rooted in human rights principles.
How did you do it?
An extensive literature review took stock of the statutory material, case law, and academic commentary on the topic, from across jurisdictions. We then presented the work at a number of events (primarily academic conferences). We discussed outcomes and recommendations at a special workshop attended by scholars, lawyers, and participants working in some of the affected industries, and with the support of the new Information Law and Policy Centre at the University of London, and subsequently published summary information in the CREATe legacy report and longer ‘draft industry guidance’. Further publications will follow, not least in light of continuing developments in case law.
What are your key findings?
Copyright incentivises the production of new forms of expression and thus can be seen to promote free speech, or at minimum incorporate some of its values. However, copyright, both in law and more broadly through the mechanisms used to enforce it, can conflict with the right to free speech where user rights are limited to a greater extent than is necessary to protect the copyright work. The right to freedom of expression should only be restricted in the circumstances provided by law and balanced against competing rights, such as property and the freedom to conduct business. This requires consideration of human rights jurisprudence external to copyright law to inform the meaning of these restrictions with it. The corporate responsibility to respect human rights requires that businesses manage their human rights impact through policy commitments and a system of due diligence. In this way they ‘know and show’ they are not infringing human rights, and remediate instances where they do infringe rights.
What impact has your work had so far/what impact do you anticipate it will have?
We hope to disseminate our findings further, and to investigate follow-up projects, especially using comparative legal methods to consider the impact of changes made during the lifetime of the project e.g. new exceptions in Canada.
Challenges encountered/Lessons learned
The volume of literature on the topic was huge and disparate. Moreover, we found ourselves focusing on expression and related issues; the wider set of human rights was therefore considered by implication rather than in detail. The debate at our London workshop was at times forceful – as with a number of CREATe projects, there are strong feelings among the affected stakeholders and in user communities about the work.
Are there additional/new research questions still to be answered in this area?
Yes (including as noted above examining the impact of legal changes) – but also including the degree to which the UK’s post-Brexit arrangements, while still within a WTO/TRIPs context, might restore certain issues to the forefront of discussion e.g. fair use.
How has your association with CREATe helped to take things forward?
Our research was informed by the work of others, in terms of how CREATe projects highlighted (especially through empirical studies) the potential for FoE-related conflict in certain areas (e.g. parody). We also drew upon the CREATe network in assembling the participants for our final workshop.
To find out more see the literature review: https://www.create.ac.uk/publications/copyright-and-freedom-of-expression-a-literature-review/
And draft industry guidance: https://www.create.ac.uk/publications/draft-industry-guidelines-to-respect-copyright-and-free-speech-guidelines-for-copyright-owners-and-intermediaries-for-respecting-the-right-to-freedom-of-expression-as-it-relates-to-copyrighted-works/