The complicated relationship between intellectual property rights and human rights
Early in the twenty-first century, the attempt to enact exclusivity-based laws for controlling access to digital resources in the US gave rise to the open movement. The movement quickly gained momentum. The champions of openness hoped that universal access to knowledge and culture, made possible thanks to the power of the Internet, would contribute to building more democratic societies.
When it comes to human rights and intellectual property rights, the relationship between the two regimes has been complicated. They have developed alongside and intersected at various points. The intellectual property rights regime was set to seek a balance between protecting and rewarding the inventor’s/author’s interests and ensuring that their work is available for use by others. The right to protection of the “moral and material interests” of an individual’s intellectual product has been enshrined in the canon of international human rights (Art. 27 of the Universal Declaration of Human Rights, Art. 15 of the International Covenant of Economic, Social and Cultural Rights). Notably, in both cases, it is preceded by guarantees of the right of everyone to take part in cultural life and enjoy the benefits of scientific progress.
Like most human rights, the right to the protection of the “moral and material interests” of an individual’s intellectual product is not absolute but should be balanced against other rights and interests.
Over the years, IPR laws have, however, become a regime that unfairly benefits intellectual property owners and restricts access to knowledge and innovation. As a result, the protection of interests in intellectual creation is both a human right as defined in international treaties and evolved into a system that systematically threatens the enjoyment of human rights.[1] [2] [3]
As the regime governing intellectual property rights evolved and began disproportionately favoring IP rights owners, the concept of openness became a tool for challenging power relations and striving for more equality. In that sense, the promotion of reuse and access to informational resources was fully compatible with the need to defend human rights, including the right to the freedom of expression or the right to participate in cultural life, against the hegemony of intellectual property rights. Beyond that, recognizing the issues at the intersection of openness and human rights requires a nuanced picture of the two concepts and their interaction.
Human rights online
The term “digital rights” refers to different, albeit related, ideas. According to Hector Postigo, the lack of consideration given to concerns voiced by public interest groups during the US adoption of the Digital Millennium Copyright Act served as the original impetus for the digital rights movement.[4] The digital rights movement in the US was therefore concerned primarily with consumer rights to digital content, the “technological impediments to digital media consumption and the laws that abetted them.”[5]
On the other side of the Atlantic, the notion of “digital rights” has typically referred more broadly to freedoms and rights in the digital environment.[6]
In that sense, it can be considered akin to or, in specific contexts, synonymous with the notion of “human rights online,” with a considerable focus on privacy and data protection-related concerns, given that these rights are most frequently challenged in the online context.
The Council of Europe’s “Guide to human rights for online users” underscores that the state’s obligation to secure for everyone in its jurisdiction the human rights and freedoms enshrined in the ECHR is also valid on the Internet. The document goes into greater depth about particular areas of rights. i.e., related to access and non-discrimination, freedom of expression and information, assembly, association and participation, privacy and data protection, education and literacy, as well as rights of children and young people.
Karppinen and Puukko distinguish four discourses of digital rights, although they admit that the boundaries between them remain fluid:
- Digital rights as protection of negative liberties (“cyberliberties”), understood as “the protection of individuals’ or sometimes corporations’ liberty to pursue their natural self-interest, against state intervention and regulation, guaranteed by legal and constitutional limits on state power.”
- Positive rights and state obligations – in this discourse, the issue of the institutional and regulatory frameworks required to protect and fulfill rights is raised. Digital media are generally considered a space for the enjoyment of human rights. In line with this approach, there is room for the intervention of the state actors to ensure the necessary conditions for realizing rights.
- Rights as a vehicle of “information justice” – this framework sees digital rights as a mechanism to question and change hegemonic mechanisms and relations of power. The focus is on the political economy of data and societal implications. This discourse combines individual rights with collective ideals and the idea of the commons. The aim is to protect the internet from state and corporate colonialism. The subject of rights is extended to vulnerable and marginalized groups.
- Rights and business: affordances provided by platforms – this discourse elides the role of states. It seems to be composed of two aspects. First is the power of corporate actors to grant rights (affordances); second is the obligation to respect rights recognized in human rights frameworks.
The rights discourses have functioned well as a “counterforce that protects individuals against excesses or illegitimate forms of power, including both state and corporate domination.”[7] The human rights frameworks that are currently recognized by the law, such as the European Convention on Human Rights, reflect this role of human rights discourse. Such legal frameworks have been valuable for protecting individual freedoms and needs concerning data technologies.
When it comes to building an open and democratic internet, the human rights frameworks have, however, two significant weaknesses. First, they fail to defend collective interests. Although it has been recognized, as noted above, that rights discourse may serve as a vehicle for achieving “information justice,” in practice, this strategy has not been operationalized. Legal frameworks that recognize rights are set to protect an individual. The concept of collective rights that could serve as a mechanism for achieving “information justice” is still highly debatable.[8] We are, therefore, left with individual rights that are inadequate to mitigate all “datafication”-related harms[9] “The inadequacy of the individualistic perspective to deal with datafication-related harms is especially true given that data injustice increasingly tends to occur at the communal level.[10] When data subjects are considered members of groups rather than unique individuals, harm might be challenging for the individualistic perspective of rights to remedy.[11] Human rights have also been problematized from the perspective of economic power. Individual rights might be ill-equipped to provide meaningful solutions in an environment characterized by deep societal inequalities produced by surveillance capitalism or data colonialism.[12] In practice, it is also very difficult to exercise individual rights against gigantic platforms operating across borders that frequently act with little to no oversight of how they interact with individual users. The second weakness of the human rights frameworks in dealing with the challenges of datafication is something that is not usually seen as a weakness at all, namely the fact that, at their heart, human rights are primarily a defense against the most powerful players. A key role of the existing human rights frameworks has been to set limits on the state’s authority. As a “shield against” the abuse of power, their role in looking for alternatives to the current online environment and fleshing out a robust positive vision of the digital world has, so far, been limited.
The inability of the existing human rights framework to address some of the challenges arising from datafication is an important insight and lesson for the open movement, and it gives rise to a space where it should step in.
Open movement, “information resources,” and digital rights
The open movement was founded under a specific vision of the internet. This vision originated in the early days of the internet before it was privatized. It was expressed most ardently by John Perry Barlow in his Declaration of Independence of Cyberspace.[13]
Barlow spoke there of a global social space that is “naturally independent” of the government’s tyrannies, of “unwritten codes” that provide the online society “more order that could be obtained by any of the [government’s] impositions.” Barlow imagined a world “that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth,” where “anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.” The internet does not look anything like this today or, as many argued, ever did, but nevertheless, this vision sparked early internet users’ imaginations.
Inspired by ideas of an uninterrupted flow of knowledge and information and driven by the critique of intellectual property in digital works[14], one of the open movement’s guiding principles became the belief that enabling access to online information resources would have positive social effects and that these benefits would outweigh the interest of copyright holders.
As a result, the openness of the movement was strongly associated with the idea of online resources that, in the members’ opinion, should be shared and made available for use and reuse by everyone.
New problems with the idea of free flow and access to information resources started to emerge as the internet developed and became populated with personal data. At the time when the open movement was formed, the notion of online information resources encompassed mostly intangible creations of the human intellect. Later, with the internet’s evolution, it expanded in scope. Besides the creative works and knowledge, it now includes data about people, their behaviors, and their activities.
Although both categories may be considered online information resources, access to and the flow of data about individuals and the most private aspects of their lives raises fundamentally different issues than the flow of culture and knowledge. Having said that, since the consumption of culture and knowledge generates data about users who engage in this activity, the challenges the two flows raise are not disconnected. There are instances where different categories of information resources are combined together, as in the case of, for example, a picture of someone’s face that might be considered both creative work and personal data. While the intangible creations of the human intellect are undoubtedly an outcome of the author’s labor, the status of online data provided and generated by and about individuals is ambiguous. Some are the subject of personal data protection laws. Much of it, however, falls between the cracks of the current regime.[15]
Given the above, there is a need to adapt the ideas and approaches of the open movement to the challenges of the new online reality and to acknowledge that some concepts and tools may be ill-fitted to accommodate the sharing of certain kinds of online information resources.
The recognition of what online information resources encompass has been, however, rather implicit within the movement. It resulted in a situation where it has been argued that some adverse effects of “datafication could be attributed to the tools and mechanisms created by the open movement. The availability of big data has facilitated the development of some technologies that have demonstrated harmful societal effects: if “free to use” online images of people “in the wild” weren’t readily available, facial recognition technology advancement would be severely hampered[16], without the enormous volumes of data about people accessible online or shared with private actors by public bodies, some contentious predictive police tools would not be feasible.[17]
Openness and digital rights are intrinsically intertwined. Openness is essential for the enjoyment of digital rights, and the exercise of digital rights contributes to strengthening the idea of openness. Rights such as freedom of expression and access to information are a vehicle for openness. At the same time, there are tensions between the two frameworks.
Karppinen and Puukko’s distinction between the different discourses of digital rights, outlined above, proves useful in mapping out the relationship between digital rights and openness.
With the evolution of the internet and the types of “information resources,” people are putting online, openness started to clash with digital rights conceptualized as a form of control over private information or over an online environment expressed in the traditional accounts of privacy and personal data online. In such a scenario, openness and digital rights must be weighed against one another.
The second discourse of digital rights, namely that of “positive rights,” which recognizes the state’s role in creating the conditions essential to enjoy rights, would be at odds with the cyberlibertarianism of the early-day open movement. Nowadays, the aversion to regulation and the state’s involvement in online matters is, however, much less pronounced among advocates of non-exclusive forms of governing online resources. As a result, the discourse of digital rights and openness might reinforce each other.
The relationship between openness and the third discourse noted above – namely, digital rights as a vehicle of information justice – depends on how openness is defined.
In the narrow sense, understood merely as unobstructed access to online resources, openness could be viewed as an element of the quest for information justice but in itself would constitute a less ambitious or critical project. If, however, openness and its proponents are also interested in creating conditions necessary to enable the enjoyment of that access and are willing to acknowledge and address its negative externalities, then rights as a vehicle of information justice and openness are compatible and mutually supportive.
Final thoughts
Human rights frameworks help prevent individual harm and provide mechanisms to turn to in case they occur. They are less useful when dealing with harm that occurs at a collective level. Moreover, their ability to conceptualize a robust positive vision of a digital space to work towards and a viable alternative to the fundamentally broken system of privately owned public online spaces so far has been limited. The concept of openness might be helpful for considering and pursuing such options.
The open movement, with its focus on access and public interest, has an important role in the ongoing rethinking of online privacy and the recognition of new challenges of datafication and governing online data, which cannot be solved by relying on the current data protection regime. For example, it has been recognized that the current personal data governance models do not fully account for the population-level relational effects of data extraction by the most powerful technology companies.[18] Representatives of the open movement not only recognize that data-driven business models lead to the centralization of social and political power, but also go a step further and propose a mechanism of data sharing in the public interest.[19]
At the same time, the open movement should pay attention to the lessons learned by the digital rights and data justice movements to effectively contribute to addressing the challenges currently driving digital policy debate. The old ideals of free flow of, access, and sharing of information that propelled the open movement in the early 2000s are ill-equipped to address the challenges of the modern internet related to the surveillance and profiling of users and the add-based business model of companies that dominate the internet landscape. Because of the evolution of the concept of “information resources” and how these resources are used, the open movement needs to join the discussion on online privacy and data protection. If it fails to do that, it runs the risk of ignoring some of the most important concerns regarding the governance of online data.
Zuzanna Warso is the Director of Research at Open Future. She has over ten years of experience with human rights research and advocacy. In her work, she has focused on the intersection of science, technology, human rights and ethics. Zuzanna spent more than eight years with the Helsinki Foundation for Human Rights, the most prominent human rights non-governmental organization in Poland, where she has gained experience in advocacy and policy work. She holds a Ph.D. in International Law and an M.A. in English Studies from the University of Warsaw. She has been involved in national and international interdisciplinary research and innovation projects, exploring the ethics of new technologies and their impact on human rights and freedoms. Before joining Open Future, Zuzanna cooperated with Trilateral Research, where she researched the ethical and human rights challenges posed by new and emerging technologies.
We asked leaders and experts from the broad open movement what the Paradox of Open means to them and how to address the challenges that it poses. This essay is one of the responses.
