Last December, the Inter-American Commission on Human Rights Office of the Special Rapporteur for Freedom of Expression published the report Freedom of Expression on the Internet.
The report, authored by Rapporteur Catalina Botero Marino, warned that copyright protection “cannot be pursued in a way that chills creativity or the free exchange of information on the Internet.” It specifically warns against intermediary liability, non-judicial processes of notice and termination, disconnection of users from the internet, and unreasonable penalties in cases of civil liability.
An excerpt regarding copyright in the digital environment follows:
75. Copyright protection is without a doubt a legitimate end that can lead to the imposition of limits to the right to freedom of expression. Nevertheless, this protection needs to be provided while respecting all of the safeguards mentioned in earlier paragraphs and while taking into account the unique nature of the Internet. Specifically, this protection cannot be pursued in a way that chills creativity or the free exchange of information on the Internet. The Internet has established unprecedented conditions for the exercise of freedom of thought and expression and other human rights, including economic, social and cultural rights, including the right to education and the right to participate in cultural life and enjoy the benefits of scientific progress and its applications. The Internet has become a transformative instrument that allows billions of people to access, share, exchange and enjoy cultural production on a global scale, instantly and at a relatively low cost. In this way, the Internet empowers the right to participate in cultural life, which includes a State obligation to facilitate and provide access to cultural production.
76. In this sense, it should be recalled that the public has an interest in defending copyright, but also in maintaining the Internet as a free and open space and in the promotion of the right to culture, education and information. These public interests also form part of the social dimension of the right to freedom of thought and expression. It is consequently necessary that restrictions to the right to freedom of expression on the Internet that have to do with copyright violations comply with the requirements established in the American Convention and be designed so as to not affect the unique capacity of the Internet to promote freedom of expression and access to knowledge and cultural production.
77. On previous occasions, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights of the OAS have had the opportunity to address some issues related to the protection of copyrights on the Internet. They have noted that the laws against Internet-based piracy have the legitimate aim of seeking to protect copyrights. Nevertheless, when such laws are drafted broadly or ambiguously, they raise serious concerns with respect to their potential impact on the right to freedom of expression. In this regard, ambiguous prohibitions can lead to the silencing of speech that is absolutely lawful and deserving of protection because it is not covered by copyrights.
78. The Rapporteurs have maintained that in considering domestic laws and international treaties — such as the Anti-Counterfeiting Trade Agreement — “the States must bear in mind that although freedom of expression can be restricted to meet legitimate aims, such as the prevention of crimes or the protection of the rights of others, those limitations must be drafted clearly and precisely, and infringe upon the right to freedom of expression to the least extent possible. Any measure that affects speech that circulates on the Internet must be designed with the specific aim of preserving the singular capacity of this medium to promote freedom of expression through the free exchange of information and ideas instantaneously and at a low cost, without regard to borders.”
79. The Rapporteurs have also expressed their concern over the establishment of a non-judicial process of “notification and termination,” which does not meet the requirements of Articles 8 and 25 of the Convention.
80. Also of concern are laws that require intermediaries to control user-generated content in order to identify copyright violations. The four Rapporteurs on Freedom of Expression indicated that intermediaries should not be required to monitor user-generated content, and they emphasized the need to protect intermediaries from any liability, provided that they do not intervene specifically in the content or refuse to comply with a court order for its removal.
81. Finally, it is worrying that these types of laws can affect different forms of protected speech involving an entire website even if only a small portion of its contents are considered unlawful.
82. In particular, disconnecting Internet users as a punishment for a copyright violation, including through mechanisms of “graduated response,” constitutes a radical measure that disproportionately restricts the right to freedom of expression, as noted by the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Similar warnings should be made in the case of civil liability: Awards need to be strictly related to the actual damage suffered by the holder of the copyright and shall not be so large as to have a chilling effect. This analysis should be taken into account in the context of specific cases in order to establish whether such damage has effectively taken place or not, and, where applicable, its magnitude.
83. The prohibition of the use of circumvention tools to legitimately protect the right to anonymous communication or for the legitimate use of a person’s property shall not be considered a legitimate copyright protection measure.
