Rethinking Copyright from the ‘Capabilities’ Perspective in the Post-TRIPs Era: How can human rights enhance cultural participation?

The current scholarship on copyright predominantly considers this area of law from the standpoint of economics. Likewise, since the adoption of the TRIPs Agreement, contemporary copyright law-making and practice has mainly been constructed around the assumption that its job is to create incentives to make more expressive works in the form of copyright embedded in goods and investment. Copyright law has heavily skewed towards the protection of corporate copyright ownership rather than individual authorship. In this model, culture is seen as the marketplace for merchandising and producing the products of copyright industries and an economic space facilitating the process of creativity. Intellectual properties are said be essential assets in firms’ portfolios and an important component in the macro-economic development of a country. Thus, current copyright law has predominantly an economic-oriented model that shapes its cultural and development policies. This thesis offers an alternative framework for copyright law focusing not on economic development alone but on more broadly promoting human development and one of its predominant framework, namely the ‘capabilities approach’, to transform the ‘controlled culture’ that individuals live in to a ‘fair culture’. Thus, this study’s central research questions are: How could western (UK, EU, and US) copyright laws’ economic-oriented development and culture visions be reshaped through the capabilities approach and ‘participatory culture’ considerations in order to enhance participation in culture? And what legal resolutions and remedies could be drawn from the fundamental rights framework (specifically from the right to take part in cultural life and freedom of expression) to make such a shift in copyright laws? Freedom is a crucial value in the construction of a fair culture within copyright. Inspiration here is Amartya Sen’s concept of ‘development as freedom’ and Martha Nussbaum’s idea to rationalise these freedoms as touchstone values in constitutional entitlements. To promote ‘development as freedom’, in Amartya Sen’s words, copyright law cannot be detached from the considerations of fostering people’s capabilities to participate in cultural and political life. Therefore, the main contention of this thesis is that copyright law does more than encouraging the creation of more commodities and investment: it fundamentally affects human development and substantive freedoms, or capabilities, of all people to live a good life in a democratic culture and society. The challenge that this thesis posits is how to bring the politics of human dignity and the politics of welfare into a single framework within copyright law. To this end, the capability-oriented human rights assessment of copyright law is brought to open a fresh discussion over the conventional wisdom mentioned above. To replace the existing ‘culture and economic development model’ with the ‘culture and human development model’, this study identifies capabilities or substantive freedoms (cultural human rights and freedoms), as a way of evaluating copyright law’s goals in general and its impact on individuals’ capabilities to freely express themselves and participate in cultural and political life. As an alternative to traditional development measures, Sen and Nussbaum propose the concept of the advancement of ‘central capabilities’ in which capabilities represent ‘what people are actually able to do and to be’. This inquiry aims at creating a synergy between the ‘capabilities approach’and human rights framework through the identification of relevant capability-based cultural human rights and freedoms to set a normative base for the construction of a fair culture. Again from a capabilities perspective, this thesis further analyses some contemporary issues surrounding contemporary copyright enforcement measures - namely notice-and-4 takedown and graduated response procedures, file sharing, disclosure orders, filtering and website blocking orders, the extension of copyright terms, pre-established/statutory and additional damages, technological protection measures and the intermediary liability, the extension of criminal liability and notice-and-staydown - where the tension between copyright law and cultural human rights and freedoms are more acute. This helps to identify the important cultural netibilities (freedoms/capabilities on the Internet) in a networked world. In the final analysis, this thesis proposes two frameworks, one for legislators and one for courts, to engage with these cultural human rights and freedoms which are of importance for the advancement of human development. In the former framework, the copyright rules laid down by the Trans-Pacific Partnership Agreement are discussed as a case study to show more concretely how copyright law affects human development and to make proposals for future direction of treaty and law-making with respect to it. The second framework, by fundamentally relying on the legal test proposed by Abbe Brown in her book “Intellectual Property, Human Rights and Competition: Access to Essential Innovation and Technology,” aims to complete this thesis with the introduction of a legal test (deconstructive multiple proportionally test) for courts to engage with a conflict of norms between human rights and copyright, which will make them take cognisance of human development paradigm, when such a conflict is encountered.University of Exeter, College of Social Sciences and International Studie