A/HRC/28/57
reinterpretation. Hence, the moral interests of authors in objecting to modifications of their
works are interpreted in conjunction with the moral interest of other authors’ creative
licence.
37.
One recent attempt to strike that balance is the opinion of the Court of Justice of the
European Union in case C-201/13, Deckmyn v. Vandersteen. The Court stated that the
fundamental right to freedom of expression requires European countries to permit the
unauthorized use of copyrighted works for the purposes of parody (which evokes an
existing work while being noticeably different and constitutes an expression of humour or
mockery). The Court recognized, however, that a particular act of parody might
unreasonably abuse the legitimate interests of the author and copyright owner, and that, if a
parody “conveys a discriminatory message which has the effect of associating the protected
work with such a message”, authors “have, in principle, a legitimate interest in ensuring
that the work protected by copyright is not associated with such a message”.13 The Court
advised national courts to determine that considering all the circumstances of a particular
case.
38.
Copyright regimes may under-protect the moral interests of authors because
producers/publishers/distributors and other “subsequent right-holders” typically exercise
more influence over law-making than individual creators, and may have opposing interests
when it comes to those rights. That makes it important to look beyond moral rights already
recognized in copyright regimes to discern additional or stronger moral interests from a
human rights standpoint, such as, in particular, the interest of artists and researchers in
creative, artistic and academic freedom, freedom of expression, and personal autonomy.
39.
The moral interests of authors in artistic freedom and autonomy offer useful guiding
principles for setting rules regarding what may and may not be done with copyrighted
works. Many countries already recognize that artistic freedom and autonomy require
copyright rules to make room for parody, commentary, and other creative transformations
of existing works. Artistic freedom and autonomy might also require protecting authors
from charges of copyright infringement for adapting or distributing their own works, even
where they have transferred their copyright to a publisher.
C.
Protecting and promoting the material interests of authors
40.
The human right to protection of authorship requires that copyright policy be
carefully designed to ensure that authors benefit materially. An important distinction must
be drawn here between human authors and corporate rights holders.
41.
Authors often sell part or all of the copyright interests in their works to a corporation
that commercializes the work. Corporate rights holders play an essential role in the cultural
economy. They innovate ways of delivering cultural works to consumers, provide income
to artists, offer much-needed capital to finance high-budget cultural productions and can
free artists from many of the burdens of commercializing their work. Nonetheless, their
economic interests do not enjoy the status of human rights. From the human rights
perspective, copyright policy and industry practices must be judged by how well they serve
the interests of human authors, as well as the public’s interest in cultural participation.
42.
Corporate rights holders with immense financial resources and professional
sophistication are typically better positioned to influence copyright policymaking, and may
even claim to speak for authors in copyright debates. Unfortunately, the material interests
13
Case C-201/13, Johan Deckmyn and Vrijheidsfonds VZW v. Helena Vandersteen and Others,
3 September 2014, paras. 29–31.
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