Utopian Concept, Mixed Structure, Digital Extent and New Claims How to Take Seriously the Right to (Artistic) Culture?

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Anna Mlynarska-Sobaczewska Professor of Constitutional Law and European Research Chair, The Institute of Law Studies Polish Academy of Sciences, Nowy Swiat 72, 00–330 Warsaw [email protected]

Abstract

The right to artistic culture, as a set of rights and freedoms associated with participation in artistic culture, can be regarded as a kind of umbrella term, consisting of an array of rights and freedoms related to the freedom to create and share one’s own works, the right to experience the works of others, setting the boundaries in horizontal relations between artists, and the freedom of access and creation on the basis of available works. The right to culture in European states with state patronage systems means also fulfilling a number of positive obligations, particularly connected to the fair financing of artistic life and universally assured access to it. This right is not by nature homogeneous and cannot be categorised only as a social right, while some components of it are already established and protected in civil rights systems of protection. Finding the elements of this right in the European Court of Human Rights (ECtHR) case-law and domestic legal measures delivers the evidence on its complex nature and allows the pointing out of some paradoxes in its development. It also considers the justiciability to the right to culture.

Keywords

Right to culture – cultural rights – freedom of artistic creativity – freedom of expression

* The article was written under the project ‘Right to culture – legal model’, sponsored by the National Science Centre, Poland (2014/13/b/hs5/01325). Anonymous reviewers comments on an earlier drafts are gratefully acknowledged.

Utopian Concept, Mixed Structure, Digital Extent 177

1 Introduction

The right to culture – known from the Universal Declaration of Human Rights1 as the right to participate in culture – is an ambiguous and complex concept and one of the most enigmatic parts of the human rights system. As an individual right, it is relatively rarely guaranteed in international legal instruments and national law. Meanwhile, cultural life is a fundamental factor in human development, allowing for the development of self-awareness, creative ability, critical thinking, sensitivity and everything that constitutes human personality and intellect. Culture is also a matrix of the social fabric, allowing for the emergence and development of social values, the sense of belonging, identity and community. It is difficult to overestimate its value and not to perceive its importance also in legal terms. It is, therefore, worth analysing the structure and content of the rights attached thereto, and their capacity for judicial protection, all the more so since technological development and phenomena related to the digitisation of the message have led to a rapid development of access to cultural life, as well as a paradigm shift in participation in culture and, as a consequence, an increase in demands related to it. The conceptualisation of its content and the claims derived from the right to culture is a good opportu- nity to realise how complex and ambiguous is the essence and structure of the rights traditionally rated as ‘second generation’ rights. This article aims at presenting the structure of the right to culture, understood as a set of rights and freedoms associated with participation in artistic culture. The assumption is that this right is not of a homogeneous nature and cannot be categorised only as a social right. Some components of this right are already established and protected by European human rights instruments. The other elements of the right to culture could be recognised due to the justiciability of social rights. At the beginning, the article presents briefly the concept of right to culture and places it within the human rights system. In the second part, the judicial protection of the components of the right to culture are presented that have been in use so far, and which are found in the selected jurisprudence of international and national courts, with particular regard to the horizontal effect and other positive obligations of public authorities as indicated in this case-law. The final part outlines the direction of further developments on the right to culture, in relation to the standards of implementing cultural policy in European countries.

1 General Assembly Resolution 217A (iii), un Doc. A/810 at 71 (1948).

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2 The Notion and Content of the Right to Culture

The founding instrument of the modern human rights canon, the Universal Declaration of Human Rights, guarantees in Article 27 that ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. The International Covenant on Economic, Social and Cultural Rights of 1966 (the Covenant) protects the right to participate in cultural life in Article 15(1), whereby it states that ‘[p]arties recognize the right to: participate in cultural life, benefit from scientific progress and its applications, to enjoy the protection of moral and material interests resulting from own scientific, literary or artistic creativity’. The Covenant oblige the Parties to take steps ‘in order to achieve full implementation of this right’, which should ‘adopt the necessary measures for the preservation, development and dissemination of culture’, respecting the freedom necessary for research and creative activity. Therefore, the Covenant protects explicitly the right to participate in cultural life as a universal right of everyone, including the active participation (co-creation of cultural life), as well as participation understood as access to cultural life (i.e. being a viewer, a reader, an observer of such a life). Contrary to many of the rights contained in the Universal Declaration and guaranteed in the Covenant, however, the right to culture has not become a necessary element in the catalogue of rights in international, regional or national instruments, nor has there been a coherent structure of that law, settling its nature, scope or the claims that may arise if it was granted the quality of a subjective right. The right to culture, guaranteed by the Covenant almost sev- enty years ago, remains one of the most abstract and neglected area in the en- tire array of rights and freedoms – both within the international and national legal orders. There are two main reasons for this. First of all, culture is such a complex and ambiguous concept, that any attempts at its institutionalisation and definition are bound to be as successful as ‘closing the wind in a cage’.2 That is why the creators of acts guaranteeing rights and freedoms are not eager to look into such elusive matter, which includes spontaneous and improbably diverse human activities.

2 The term was initially used by R Borofsky ‘Cultural possibilities’, in the unesco World Culture Report, Creativity and Markets, (unesco, 1998), 64.

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Secondly, skepticism about the concept of regulating the right to culture is linked to the reluctance of state authorities to undertake new social obligations towards their own citizens. Ensuring the right to culture at the individual level is most often understood as equivalent to institutionalising public authorities’ obligations to guarantee access to cultural assets, minimise economic barriers, support the development of artistic culture and maintain cultural institutions. This reluctance has resulted in the failure of the inclusion of the right to culture into rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights – echr).3 While states find it easy to adopt and ratify acts that care for cultural values, cultural diversity and cultural heritage, it is quite difficult for them to agree on a commitment secured by instruments of protection of those rights that impose measurable and enforceable obligations. A system of standards of cultural activity and positive obligations of the state concerning the access and conditions of citizens’ participation in culture, however, is being developed in European jurisprudence and legislation. As a result, the basis of this right as individual entitlement is being created. An indication of its relevant nodes and components points to the structure of the positive obligations of the state, which correspond to the rights of citizens, allowing the beginnings of the creation of a more systematic model of what can be described as the right to culture and of the discussion about its justiciability. The value of culture is recognised and defined in legislation, although it is not unambiguously understood.4 Firstly, culture refers to intellectual or artistic endeavours or assets, which today is commonly referred to as artistic culture. This is a concept related to aesthetics rather than the social sciences. During the early period of international protection of participation in cultural life and heritage protection, the thinking about artistic culture, the dominant culture,

3 A Mężykowska, ‘echr Cultural Protocol Debates/cahmin’, in A Wiesand, et al (eds.), Culture and Human Rights: The Wrocław Commentaries, (De Gruyters, 2016), 53. 4 Currently, the definition which contains the ability to conserve the achievements of human activity and to transfer standards of behaviour and patterns of thinking is the following: ‘Cul- ture consists of patterns, explicit and implicit, of and for behaviour acquired and transmit- ted by symbols, constituting the distinctive achievements of human groups, including their embodiment in artifacts; the essential core of culture consists of traditional (i.e. historically derived and selected) ideas and especially their attached values; culture systems may, on the one hand, be considered as products of action, on the other, as conditional elements of future action.’ AL Kroeber and C Kluckhohn, Culture. A Critical Review of Concepts and Defini- tions, Peabody Museum of American Archeology, (Cambridge Mass., 1952), 181.

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180 Mlynarska-Sobaczewska and the role of the state in its protection prevailed.5 According to the European Convention on Human Rights and the Covenant, the term ‘participation in the cultural life of the community’,6 was originally understood as providing a mass audience with access to the so-called high culture, which was hitherto elit- ist. Therefore, culture meant museums, libraries and theatres,7 and according to the creators of the notion of culture was related to artistic culture, namely the fine arts and literature, and included the unquestionable achievements of mankind. The second half of the twentieth century drew attention to the role of cultural diversity and distinct communities operating within culture. In this meaning, the notion of culture began to dominate the discussion on cultural rights, as well as started to appear in national reports on the implementation of Article 15 of the Covenant. Recognising ethnic cultures and the importance of cultural diversity in communities has also become the subject of numerous international regulations,8 among others the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005 and the unesco Convention on the Protection of the Intangible Heritage, adopted in 2003. Ac- cording to their content and purpose, the right to culture means protecting the right to maintain a culture of existence – customs, patterns of behaviour and beliefs – on which the identity of the community is based, in particular the identity of a minority within the remits of another cultural community.9 These two notions of right to culture were developed simultaneously. Mean- while, in the order of human rights protection at regional level in Europe, the right to participate in cultural life as an individual right has not been a de- lineated right so far. Neither the European Convention on Human Rights nor

5 AF Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in F Lenzerini and AF Vrdoljak (eds.), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature, (Hart Publishing, 2014) 50, at 142. 6 J Morsink, The Universal Declaration of Human Rights – Origins, Drafting and Intent, (Univer- sity of Pennsylvania Press, 1999), 244. On the perspective and intent of the Universal Declara- tion framers, see also R O’Keefe, ‘Cultural Life under the icescr’, (1998) 47 International & Comparative Law Quarterly, 904; LR Helfer and GW Austin, Human Rights and Intellectual Property, (Cambridge University Press, 2012), 239. 7 YM Donders, Towards a Right to Cultural Identity?, (Intersentia, 2002), 139; O’Keefe, supra n 6, 904. 8 YM Donders, ‘The Legal Framework of the Right to Take Part in Cultural Life’, in YM Donders and V Volodin (eds.), Human Rights in Education, Science and Culture, Legal Developments and Challenges, (Ashgate Publishing, 2007), 250–251. 9 On such a meaning, see D Irina, ‘A Culture of Human Rights and the Right to Culture’, (2011) 1(2) Journal for Communication and Culture, 41.

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Utopian Concept, Mixed Structure, Digital Extent 181 any of its Protocols guarantee it. It is also not included in the Charter of Fun- damental Rights of the European Union.10 Conversely, the Strasbourg Court’s case-law provides examples which, in essence, constitute protection of the right of individuals to cultural life. Recent jurisprudence points to the grow- ing importance of this right, both within the context of the freedom of artistic creativity and its borders,11 as well as in the context of the rights of national, religious and ethnic minorities.12 At the level of the Council of Europe, the right to culture is also present as an assignment for public authorities. In the light of the 1954 European Cultural Convention, the task of the Parties to the Convention is to protect the common cultural heritage and stimulate the development of culture in the Mem- ber States. Other tasks of the countries and methods of support in the field of cultural heritage protection include: the 1984 Convention for the Protection of the Architectural Heritage and the 2001 Convention for the Protection of the Audiovisual Heritage. The Recommendation 1990 (2012) on ‘The right of

10 2012/C 326/02. The Charter guarantees freedom of art and science in article 13: ‘The arts and scientific research shall be free of constraint. Academic freedom shall be respected’. 11 On freedom of artistic expression and its limits in the context of article 10 of the Conven- tion, see: Müller and Others v Switzerland (App. 10737/84) Judgment of 24 May 1988 (1988) 13 ehrr 212, Karataş v Turkey, (App. 23168/94) Judgment of 8 July 1999 (1999) 1999-iv 81, Alinak v Turkey (App. 40287/98) Judgment of 29 March 2005 (2005) echr 188, Vereinigung Bildender Künstler v Austria (App. 68354/01) Judgment of 25 January 2007 (2007), 47 ehrr 5. On access to cultural goods, see: Akdaş v Turkey (App. 41056/04), Judgment of 16 Febru- ary 2010 (2010). 12 About immigrants’ right to maintain cultural bonds with their state of origin and the right of migrants families to sustain cultural and language traditions, see Khurshid Mustafa and Tarzibachi v Sweden (App. 23883/06) Judgment of 16 December 2008, 52 ehrr 24. In the Case of Chapman v the United Kingdom (App. 27238/95), Judgment of 18 January 2001, (2001) 33 ehrr 399, the Court declared that the right to protect and respect private and family life means in the case the right to sustain the cultural identity of the minority with a nomadic style of living. In the case of the Tourkiki Enosi Xanthis & Others v Greece (App. 26698/05, Judgment of 27 March 2008 (2008) the Court considered language rights (entitlement to maintain own language) as a pivotal element of the right to one’s own culture, derived from art. 8 of the Convention. On guarantees to respect private and family life, see also: Mentzen v Latvia (App. 71074/01), Judgment of 7 December 2004 (2004), Bulgakov v. Ukraine (App. 59894/00), Judgment of 11 September 2007(2007), 52 ehrr 419, Baylac- Ferrer and Suarez v France (App. 27977/04), Judgment of 25 September 2008 (2008), Güzel Erdagöz v Turkey (App. 37483/02) Judgment of 21 October 2008 (2008). Also, for the right to protection of the language right of prisoners, see Mehmet Nuri Özen and Others v Turkey (App. 15672/08), Judgment of 11 January 2011 (2011).About the protection of language rights based on art. 10 of the Convention, see Ulusoy & Others v Turkey, (App. 34797/03), Judgment of 3 May 2007 (2007).

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everyone to take part in cultural life’ became the instrument of soft law that allows the understanding of the meaning and scope of the right to culture. It contains the postulates of equal access to all kinds of cultural resources and the obligation of public authorities to provide a broad supply of cultural services. The state also has to take into account radical changes in the ways of accessing culture, that is, the rapid development of digital culture. It must also facilitate the emergence of new artists and new forms of expression, as well as develop new ways of disseminating culture in order to make it accessible to everyone. The Recommendation also advises taking integrated measures to promote participation in cultural life and the introduction of synchronised development plans by national authorities. In the constitutional regulations of many European countries, the importance of cultural life and the need to protect this sphere are noticed, both in terms of individual rights and the rights of minorities to preserve their ethnic culture, albeit to a varying extent and methods of guaranteeing them. Three types of approaches can be distinguished in this regard:

(i) Ensuring participation in cultural life constitutes a category which is for- mulated as a programme or a priority of public authorities. For example, §2 of the Swedish Constitution13 declares that personal, economic and cultural wellbeing should be the primary objective of public activity. Access to culture is also treated as a state’s objective in the constitution of Switzerland14 (Article 41) in the chapter entitled ‘Social objectives’. This includes the regulation contained in the preamble (derived from the Constitution of France, 1946) to the Constitution of the Fifth French Republic15 in the sentence: ‘The Nation guarantees equal access of children and adults to education, vocational training and culture.’ In turn, the constitution of Finland16 and the constitution of Norway17 guarantee the right of ethnic groups to meet their cultural needs and to preserve their linguistic rights. The Austrian constitution includes a similar entry (Article 8).18 (ii) The second solution is to place cultural life solely in the sphere of freedom of creativity or artistic expression. The Basic Law for the Federal

13 Lag om Andring i Regeringsformen, 1974 (The Instrument of Government). 14 Bundesverfassung der Schweizerischen Eidgenossenschaft, 1999 (Federal Constitution of the Swiss Confederation). 15 Constitution de la République Française, 1958 (Constitution of the French Republic). 16 Suomen perustuslaki, 2000 (Constitution of Finland). 17 Kongeriket Norges Grunnlov, 1814 (Constitution of the Kingdom of Norway). 18 Österreichische Bundesverfassung, 1920 (Austrian Federal Constitution).

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Republic of Germany19 did just that; it guaranteed the freedom of art and expression as a fundamental right (Article 5 of the Basic Law for the Fed- eral Republic of Germany). In turn, the Italian Constitution20 puts the guarantees of freedom of art in the chapter on ‘moral-social relations’ together with the freedom of education (Article 33). Constitutions created in the last three decades of the twentieth century devote separate sections to rights related to cultural life – the Constitution of Greece21 in Article 16, as well as the Constitution of Estonia22 (Articles 38 and 39), which also guarantees national minorities the right to establish cultural institutions for the good of their own national culture (Article 50). Artistic creation is also placed among freedoms in the Latvian Constitu- tion23 (Article 113), at the same time guaranteeing the right of persons belonging to national minorities to preserve and develop their language, ethnic and cultural identity (Article 114). The Constitution of Lithuania24 guarantees freedom of science, culture, research and education (Article 42), and states that ‘the State supports culture and science, takes care of the Lithuanian monuments of the past, protects works of art and cultural monuments’ (Article 42, sentence 2). (iii) In some constitutional orders there are indications of laws adopted under the cultural rights category. The Constitution of Portugal25 (Article 42) guarantees the freedom of artistic creations, while in Chapter iii of the Constitution, which is systematically separate and deals with cultural rights and obligations and education, Articles 73 and 78 guarantee the right of access to cultural assets and cultural creation, while also formu- lating the state’s obligations in this field. The Spanish Constitution also sees the individual sphere of activity and related powers as the right (Article 44)26 and obligation of public authorities (Article 46) to preserve and promote the enrichment of the historical, cultural and artistic heritage of the peoples of Spain.

19 Grundgesetz für die Bundesrepublik Deutschland, 1949 (Basic Law for the Federal Republic of Germany). 20 Costituzione della Repubblica Italiana, 1947 (Constitution of the Italian Republic). 21 Σύνταγμα / Syntagma, 1975 (Constitution of Greece). 22 Eesti Vabariigi pohideadus, 1992 (Constitution of the Republic of Estonia). 23 Latvijas Republika Satversme, 1922 (Constitution of the Republic of Latvia). 24 Lietuvos Respublikos Konstitucija, 1992 (Constitution of the Republic of Lithuania). 25 Constituicao da Republica Portuguesa, 1976 (Constitution of the Republic of Portugal). 26 Constitución española de 1978 (Spanish Constitution): ‘The public authorities shall promote and watch over access to culture, to which all are entitled’.

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Therefore, there is a tendency, especially in the constitutions of the last thirty years (the constitutions of Spain, Portugal and most post-communist states), to vest the freedom of artistic creativity and the right to participate in cultural life with constitutional support. The unifying quality of cultural life, which builds a true and lasting identity of the community, is also strongly empha- sised. Thus, many constitutions also guarantee the minorities’ right to preserve their own culture, perceived as the community’s right.27 The examples cited above indicate that it is possible to use, following the Covenant, the rights to participate in culture as a kind of umbrella term. The right to culture in this sense is the right to artistic culture, in other words to high culture. It consists of rights and freedoms related to the freedom of expression, namely the freedom to create, share and distribute one’s own works, and the right to experience the works of others and to participate in cultural life. The right to culture also entails guaranteeing the rights of artists and setting the boundaries in horizontal relations between them and the freedom of access and creation on the basis of available works. The right to culture also means the right of access to cultural heritage, i.e. a recorded message of cultural content recognised as valuable and constitutive to our consciousness. The right to culture in modern countries, especially in Europe, where state patronage traditionally dominates, means fulfilling a number of positive obligations, particularly connected to the fair financing of artistic life and universally assured access to it. Only the entirety of these powers grants the right to culture its proper meaning. Searching for tracks of justiciability of the right to culture must take into account this complex nature and how this process is faced with difficulties associated with granting a social right (second generation) the nature of the right that may give rise to claims. International and national regulations concerning cultural rights generally treat it as a programme. The progressive nature of this right arises from Article 2 of the Covenant.28 There is no instrument of individual protection of cultural rights in the universal and regional legal order.29 Constitutional formulas also

27 K Ziegler, ‘Cultural Heritage and Human Rights’ in A Gentili (ed.) La Salvaguardia dei beni culturali nel diritto internazionale, (Giuffrè, Milano, 2007), , 1. 28 Article 2(1) 1: ‘Each State Party to the present Covenant undertakes to take steps, indi- vidually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’ 29 The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights derived from un Resolution 8/2 (2008) gives a right to individual claims (art. 1)

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Utopian Concept, Mixed Structure, Digital Extent 185 place it under state tasks, programmes, and their proper scope is defined by the statutory order, i.e. the state policy. The path of justiciability of social rights, however, has been largely examined and classified.30 In the first place, those most commonly used by courts must be mentioned, referred to as the ‘redistributive implication of first generation rights’,31 and based on finding positive obligations in rights recognised as negative, which means such that impose on the state the obligation only to refrain from interference.32 The Strasbourg Court also finds grounds for protecting the elements of social rights in the protection provided for in Article 6, i.e. through procedural protection33 and the prohibition of discrimination.34 The courts seeking constitutional review also refer to the method of seeking protection in procedural guarantees, often referring also to the prohibition of arbitrariness in awarding or cancelling specific benefits. In national courts, this implies that even a lack of a standard of social law at the constitutional level allows such control to be based solely on a procedural standard. Prohibition of arbitrariness means examining the margin of appreciation of the legislator,

to the Committee on Economic, Social and Cultural Rights, but it is not a judicial body. By September 2017, the Optional Protocol had been ratified only by 21 states and a mere 13 claims had been submitted (two of them had been concluded), . 30 E Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in D Barak-Erez and AM Gross (eds.), Exploring Social Rights. Between Theory and Practice, (Hart Publishing, 2007), 139–160. 31 Y Shany, ‘Stuck in a Moment in Time’ in Barak-Erez and Gross (eds.), ibid, 77. 32 Aires v Ireland (App. 6289/73), Judgment of 9 October 1979 (1979), 2 ehrr 305, Roche v uk (App. 32555/96) Judgment of 27 October 2005 (2005), 42 ehrr 30, Keenan v uk (App. 27229/95), Judgment of 4 March 2001, 33 ehrr 38, McGlinchey & Others v uk (App. 50390/99), Judgment of 28 May 2000 (2000), 37 ehrr 41, Pentiacova & Others v Moldova (App. 14462/03) Judgment of 4 January 2005 (2005), 40 ehrr se23, Zawadka v Poland (App. 48542/99), Judgment of 6 November 2003 (2003), Marzari v Italy (App. 36448/97) Judg- ment of 4 May 1999 (1999), 28 ehrr cd175. 33 Especially cases regarding labour rights: Vocaturo v Italy (App. 11891/85) Judgment of 24 May 1991, Lestini v Italy (App. 12859/87) Judgment of 26 February 1992 (1992), Delgado v France (App. 38437/97), Judgment of 14 November 2000 (2000), Pramov v Bulgaria (App. 42986/98), Judgment of 30 September 2004 (2004). On access to court in social security cases, see Burdov v Russia (App. 33509/04), Judgment of 15 January 2009 (2009), Makaro- va and Others v Russia (App. 7023/03), Judgment of 24 February 2005 (2005), Sharenok v Ukraine (App. 35087/02), Judgment of 22 February 2005 (2005). 34 Gaygusuz v Austria (App. 17371/90), Judgment of 31 August 1996 (1996) 23 ehrr 365, Sidabras i Dziautas v Lithuania (App. 59330/00, 55480/00), judgment of 27 July 2004, 42 ehrr 104.

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186 Mlynarska-Sobaczewska which essentially takes place in the process of controlling the constitutionality of adopted solutions. Justiciability is also carried out within the framework of the constitutional review of statutory solutions, where constitutionally guaranteed rights and relevant constitutional standards exist (e.g. adequate maintenance, suitable safeguards, education, etc). It involves searching for the core content of a given legal or judicial standard of ’reasonableness’, ‘adequateness’ and ‘proportionality’ in jurisprudence.35 Another type of judicial protection of the content of social rights arises as a result of the elaboration of the standard of prohibition of regression, i.e. the reduction of the scope (as well as standstill) of the right.36

3 Freedom of Artistic Expression

It is easiest to see the justiciability of the right to culture in the judicial protection of the freedom of artistic expression. The issue of borders and the guarantee of this freedom have been repeatedly subject to control by the Strasbourg Court in terms of compliance with the guarantees contained in Article 10 of the Convention.37 Guarantees from Article 10 of the Convention cover the freedom of artistic expression, which also includes the freedom of creation of works of art and the freedom of artistic dissemination. This has already been settled in the first case, where the Court was faced with setting the limits and content of that freedom.38 As noted by Polymenopoulou, however, the Court has not once referred to the concept and definition of art, nor the model conditions in which it can be said that there is a violation of a specific freedom of artistic expression.39 It is also impossible to state that a clear range of acceptable artistic expression began to develop in the context of conflict with other values, which according to Article 10(2) justify limiting the exercise of freedom. In particular, the

35 Curtis supra n 30, 34. 36 Curtis supra n 30, 29 (e.g. Portuguese Constitutional Tribunal Decision (Acórdão) 19 December 2002, Case No. 509/2002, Belgian Court of Arbitration (Cour d´Arbitrage) 14 January 2004, Case No. 5/2004. 37 So far (2017) the Strasburg Court or Commission has decided on 29 cases in this matter – (the Court on 24 cases). See E Polymenopoulou, ‘Does One Swallow Make a Spring? Artis- tic and Literary Freedom at the European Court of Human Rights’, (2016) 16 Human Rights Law Review, 511. 38 Müller and Others v Switzerland, supra n 11. 39 Polymenopoulou, supra n 37, 535–536.

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Utopian Concept, Mixed Structure, Digital Extent 187 paradigm of ‘defence through art’ has not been recognised – i.e. recognising the expressions contained in a work of art or in any creative process as circumstances which exclude unlawfulness.40 In about one third of the cases, in which the allegation of violation of the limits of freedom of artistic expression came up, there was an issue of resolving a conflict between the freedom of expression and the freedom of religion guaranteed by Article 9 of the Conven- tion; therefore, the problem of blasphemy appeared, alongside admissibility of punishment for it, or the prohibition of public display or confiscation of the works. Such confrontation of these two values occurr ed, among others, during well-known cases: Otto Preminger Institute v Austria,41 Wingrove v uk,42 and Vereinigung Bildender Kunstler v Austria.43 In 2006 and 2007, the Council of Europe adopted two documents facilitating the designation of these borders. Resolution 1510 (2006) on freedom of expression and respect for religious beliefs states that freedom of expression should no longer be restricted in the name of protecting ‘the increasing sensitivity of certain religious groups’. Rec- ommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion states that national law can only punish those expressions on religion that intentionally and seriously violate public order and call for public violence.44 The boundaries of artistic creations may therefore be expanded, but the content of these documents may cause the issue to be camouflaged by other premises, which, in the view of the State- Party, justify interference in freedom of expression, such as the prohibition of expression calling for violence, acts of terror or revolt.45 In a number of cases, the Court, although it did not define the art and did not intend to determine a priori its limits, pointed out that the limitation of the message and the artistic form, especially fiction, poetry, or, conversely, satirical

40 Lindon, Otchakowsky-Laurens i July v France (App. 21279/02 and 36448/02) Judgment of 22 October 2007, (2007) 46 ehrr 35. 41 Otto Preminger Institute v Austria (App. 13470/87), Judgment of 20 September 1994, 19 ehrr 34. 42 Wingrove v uk (App. 17419/90), Judgment of 25 November 1996, 24 ehrr 1. 43 Vereinigung Bildender Künstler v Austria (App. 68354/01) Judgment of 25 January 2007 (2007), 47 ehrr 5. 44 I Kaminski, Ograniczenia swobody wypowiedzi dopuszczalne w Europejskiej Konwencji Praw Człowieka (The Limits of Freedom of Expression Permissible in the European Conven- tion on Human Rights), Warszawa, 2010, 414. 45 For example in two pending cases: Samodurov & Vasilovskaya v Russia (App. 3007/06) and Alekhina & others v Russia (‘Pussy Riot’ case – App. 38004/12) – the defending State justi- fies severe measures against the applicants for the threat to integrity and security and the incitement of ethnical and religious hatred by the applicants.

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188 Mlynarska-Sobaczewska form, may cause the limits of expression in such cases to be set with greater tolerance. Thus, the Court recognised this in Karatas v Turkey46 (declaring the censorship of a volume of poetry on the grounds of religious convictions as excessive interference), or in Arslan v Turkey47 (referring to the confiscation of fine literature calling for ethnic conflict) and the similarly resolved Alinak v Turkey case.48 An interesting conflict of protected values was resolved during Ehrmann and sci vhi v France49 when the Court recognised the complaint made by the artist and the construction company accused of breaching the planning restrictions by placing artwork on the outer walls, which destroyed the urban landscape. The Court dismissed the complaint and found that the protection of the country’s cultural heritage was an excusable reason and the measures imposed on the applicants lay in the public interest within the meaning of Article 10 of the Convention. Protection of cultural heritage is well recognised in the jurisprudence of the Court as a value justifying the limitation of other rights protected by the Convention, in particular the right of ownership in Article 1 of Protocol 1 to the echr.50 Although it is difficult to demonstrate unequivocally the standard limits of the freedom of artistic expression protected by Article 10 of the Convention, it is possible to highlight several of the features that the Court has designated. First of all, this freedom also includes the freedom of creation and, therefore, the very process leading to artistic expression. Secondly, the boundaries set by Article 10(2) of the Convention apply to freedom of artistic expression, but the balance between the protection of these values and the freedom of artistic creation must be taken into account not only with its content taken into con- sideration, but also the form of expression and its scope. Lastly, the protection of cultural heritage and cultural assets constitutes justified purpose of the activities limiting the implementation of freedom, including freedom of artistic

46 Karataş v Turkey, (App. 23168/94) Judgment of 8 July 1999 (1999) 1999-iv 81. 47 Arslan v Turkey (App. 41135/98), Judgment of 23 February 2010 (2010), 31 ehrr 264. 48 Alinak v Turkey (App. 40287/98) Judgment of 29 March 2005 (2005) echr 188S. See Poly- menopolou, supra n 43. 49 Ehrmann and sci vhi v France (App. 2777/10), Judgment of 7 June 2011 (2011). See also European Court of Human Rights, Cultural Rights in the Case Law of the European Court of Human Rights, (Council of Europe, 2011, updated 2017), 6, . 50 Beyeler v Italy (App. 33202/96), Judgment of 5 January 2000 (2000), 33 ehrr 52, Debeliano- vi v Bulgaria (App. 61951/00), Judgment of 27 November 2008 (2008), Potomska, Potomski v Poland (App. 33949/05), Judgment of 4 November 2014 (2014). See also European Court of Human Rights, Cultural Rights, supra n 49, 8.

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Utopian Concept, Mixed Structure, Digital Extent 189 expression. The so-defined responsibilities of States are to a large extent a part of a classical negative obligation, that is to abstain from committing infringing acts, although sometimes they also set the standard of behaviour that protects assets covered by the right to culture (e.g. compensatory obligation if it is in regard to the protection of monuments).51

4 Horizontal Effect of Freedom of Artistic Creativity

An interesting area for defining the limits of freedom of artistic expression is its horizontal effect. Several Strasbourg Court’s judgments can be mentioned here, where alleged infringement of Article 10 concerned the cases of breach of privacy or dignity by national courts. For example, in Lindon, Otchakowsky- Laurens and July v France52 the Court explicitly stated: ‘novelists – like other creators – and those who promote their work are certainly not immune to the form of limitations provided in par. 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, duties and responsibilities’. Likewise, no violation of Article 10 was observed in the case of a writer convicted of violating the private life of presented characters in a judgment of 12 March 2015.53 In turn, in Jelsevar and Others v Slovenia,54 the Court found no breach of the right to privacy when national courts refused the dissemination of the literary elaboration of their private life. As the Court stated: ‘artistic freedom enjoyed by, among others, authors of literary works is a value in itself, and thus attracts a high level of protection under the Convention’.55 The Court did not perceive the need for interference contrary to the decisions of the national courts, which can mean that it acts very cautiously in this regard, maintaining the wide margin of appreciation and without categorically defining the sphere of protection of freedom of artistic expression. While settling, however, the horizontal effect and freedom of artistic expression in private relations and the scope of state obligations, the resolution of

51 Regarding the duty to ensure effectiveness of the right to court in copyright cases – Nemec and others v Slovakia (App. 48672/99) Judgment of 15 November 2001 (2001), LR Helfer and GW Austin, Human Rights and Intellectual Property, (Cambridge University Press, 2011), 197–198. 52 Supra n 40. 53 Almeida Leitao Bento Fernandes v Portugal (App. 25790/11), Judgment of 12 March 2015 (2015). 54 Jelsevar and Others v Slovenia (App. 47318/07), Judgment of 11 March 2014 (2014). 55 European Court of Human Rights, Cultural Rights, supra n 49, 8.

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190 Mlynarska-Sobaczewska conflict between copyright and freedom of artistic creativity has the strongest impact on the scope of freedom of artistic creativity and, in consequence, on the right to culture. Freedom of creation and access to it and the copyright regime are causing many collisions,56 although they are still in necessarily mu- tual connection and complementarity,57 which was summarised by one of the authors as ‘copyright’s paradox’.58 Courts are not eager to engage in settling this relation.59 The reason for it is the completely different nature and source of copyright and freedom of expression – copyrights come from a different legal regime, that of private law, and differ greatly in their model from human rights – they are transferable, limited in duration, and in some systems their protection depends on meeting certain formal requirements. According to its origin, copyright is treated in case-law as subordinate to the ownership rights regime.60 Meanwhile, freedom of expression is not regulated by law in such detail – particularly in private law – so that the conflict is often omitted or not noticed. Conflicts are possible where copyright and other creators’ rights to use the works meet, as well as in the relationship between the copyrighted matter and the recipient. The division between the two groups entitled to the right to culture, however, is not strict – the universality of access to culture and the democratisation of artistic culture make the recipient more and more likely to become a creator, at least to some extent. Surprisingly, the issues of using free cultural works and dependent works, despite being subject to numerous international regulations, are still completely different in many countries. For example, the right to quote is a recognised

56 J Rubenfeld, ‘The Freedom of Imagination: Copyright’s Constitutionality’, Faculty Schol- arship Series, Paper 1556, 2002, , 5–7. Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applica- tions, Venice, 1(10), Statement of Expert Group convened by unesco in Venice, Italy, July 16–17, 2009, . 57 YH Lee, Copyright and Freedom of Expression. A Literature Review, create Working Paper, 2015, 64–65. LR Helfer and GW Austin, Human Rights and Intellectual Property. Mapping the Global Interface, (Cambridge University Press, 2012), 64–88, M Birnhack, ‘The Copy- right Law and Free Speech Affair: Making-up and Breaking-up’, (2003) 43(2) idea Journal of Law and Technology, 266–272, see also us Supreme Court judgment Eldred v Ashcroft, 537 us 186 (2003). 58 NW Netanel, Copyright’s Paradox, (Oxford University Press, 2008). 59 PB Hugenholtz, ‘Copyright and Freedom of Expression in Europe’ in RC Dreyfuss, et al, (eds.), Innovation Policy in an Information Age, (Oxford University Press, 2000), 344–345. 60 Anheuser-Busch v Portugal (App. 73049/01), Judgment of 11 January 2007, 44 ehrr 42 Hugenholtz, ibid, 347; Lee, supra n 57, 29.

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Utopian Concept, Mixed Structure, Digital Extent 191 exception to copyright protection since the Berne Convention.61 Legal regulations and practice, however, are still very divergent. This policy is very liberal in German jurisprudence, in that it recognises that the quotation must be used as a tool or vehicle of an artistic opinion expressed by the author.62 In turn, French jurisprudence provides examples of a strictly regulated approach to the right of quotation.63 This right is also cited in Directive 2001/29/ec on the harmonisation of certain aspects of copyright (Article 5(3) (a, d)). In essence, however, it repeats the conditions hitherto and permits the use of a key criterion differentiating the practice, i.e. the study of the purpose and scope of the quote. It is also hard to talk about a fixed standard regarding the right to parody other people’s works. Parody is a special kind of work because it cannot be created and have an artistic expression without an original work, but it has a completely separate meaning and own existence. It essentially violates the integrity of the original work, however, as well as the author’s relationship with the work and control over its shape.64 Therefore, the attitude to parody is a litmus test for the rights of creators to use other works. The prevailing opinion is that parody should be protected as a necessary part of the parodist’s right to freedom of speech and remains in free use, but under certain conditions. The criteria of admissibility of parodying another author’s work, developed in German jurisprudence,65 require the parody to bear features of a new piece of work and sufficient ‘inner distance’.66 The issue of recognition of parody as a permitted way of using someone else’s work was, as it seemed, settled by Directive 2001/29/ec on the harmonisation of certain aspects of copyright and related rights in the information society (Information Society Directive), whose Section 5 paragraph 3 k) provides

61 ‘It shall be permissible to make quotations […] provided that their making is compat- ible with fair practice, and their extent does not exceed that justified by the purpose…’, (Art. 10). 62 German Constitutional Court (Germania 3) 29 June 2000 Geiger, ‘Copyright’s Fundamen- tal Rights Dimension at eu level’, 47–48. 63 Paris Court of Grand Instance, 23 February 1999, European Commission on Human Rights decision, (France 2 v France, Case No. 30262/96), Lee, supra n. 57, 30–31, 56. 64 Lee, supra n 57, 116, M Spence, ‘Intellectual Property and the Problem of Parody’, (1998) 114 Law Quarterly Review, 597–598. 65 See, e.g. the Alcolix and Asterix Persiflagen cases – German Federal Supreme Court, 11 March 1993, 1993 zum 534 and 537, Geis Eagle case Federal Supreme Court, 20 March 2003. See PE Geller, ‘A German Approach to Fair Use: Test Cases for trips Criteria for Copyright Limitations?’, (2010) 57 Journal of the Copyright Society in the usa, 558. 66 Lee, supra n 57, 50.

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192 Mlynarska-Sobaczewska that the States-Parties may provide for exceptions or limitations to the rights protected […] for the purpose of caricature, parody or pastiche. In some eu countries, the parody has been found to be a new free use case.67 The issue did not become obvious, as was shown in the case of Deckmyn v Vandersteen settled by the Belgian courts and the European Court of Justice of the eu. This case concerned the parody of the comic, which was used for political purposes, and it conveyed a strong xenophobic message. The original copyright holder recognised that it was ‘beyond parody’, as confirmed by the Belgian courts. There is doubt, however, regarding the meaning of the parody exception under the Directive (Article 5.3.k). The European Court of Justice decided68 that the term ‘parody’ is an independent concept in European law, although there may be a ‘wide margin of interpretation’ left to individual countries. If the parody, however, contains discriminatory content, it is incompatible with the principle of non-discrimination contained in Directive 2000/43/ec of 29 June 2000 and Article 21 paragraph 1 of the Charter of Fundamental Rights of the eu. In such a situation, the copyright holders have in principle a legitimate interest in ensuring that a protected work is not associated with such a message. Consequently, this ruling means that the recognition of parody, as an al- lowed exception to the protection of copyright of the original, requires not only an examination of the form of parody, but also its content. What is more, it means applying the criteria from a completely different order, in this case control of the content of the message, while resolving the horizontal dispute (between the copyright holder and the creator of the parody) about the scope of powers. It is hard not to consider it a serious step backwards in establishing the limits of freedom of expression in this respect. There is no doubt that parody (satire, caricature) is an artistic expression that is subject to restrictions for reasons of necessity of protecting the values indicated in Article 10 Section 2 of echr. The Strasbourg Court issued a number of rulings on the admissibility of parody,69 specifying ab casu ad casum the boundaries of freedom of expression in specific cases. In some of these cases, the Court considered the satirical expression of an artist as breaching limits of freedom of expression because of its offensive and

67 See, e.g. uk Copyright, Designs and Patents Act, 1988, sec. 30A(2). 68 ecj 3 September 2014, C-201/13. 69 Vereinigung Kunstler v Austria supra note 11, Alves da Silva v Portugal (App. 41665/07), Judgment of 20 October 2009 (2009), Bohlen v Germany (App. 53495/09), Judgment of 19 February 2015 (2015), Kuliś Rózycki v Poland (App. 27209/03), Judgment of 6 October 2009 (2009). See also Palomo Sanchez & others v Spain (App. 28995/06, 28957/06, 28959/06, 28964/06), judgment of 12 September 2011 (2011), M’Bala M’Bala v France (App. 25239/13), Judgment of 10 November 2015 (2015).

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Utopian Concept, Mixed Structure, Digital Extent 193 racialist overtones (for example, the M’Bala M’Bala case); however, it has not been linked with solving the horizontal relationship between the parodist and the author of the original. Conversely, the dependence of the freedom of creations and the distribution of parody works generally accepted as exemptions from the protection of copyrights on their content, must be considered doubt- ful because of the use of criteria beyond the formal requirements of parody, especially since parody (satire, caricature) is by nature much sharper and more offensive than a usual artistic expression. This also puts the creators of the parody at the risk of civil penalties associated with infringement of copyright for an expression deemed as violating the limits of freedom of expression for completely different reasons. As can be seen, in terms of deciding on the limits of freedom of artistic creation – limits that are due to the horizontal effect – there are many different and even misleading clues, and it is difficult to indicate the developed standard or even the tendency to define these limits. The aesthetic criterion is immanently linked with considering the limits of parody (as other artistic expressions), which introduces a considerable margin of appreciation and un- certainty right from the start, because these are usually views that escape strict regulatory framework. Introduction of a certain standard set by the right to culture in this regard, could introduce the assumption that such use of others’ works is admissible and that the authorities, in particular the courts, should get the instrument of exercising the protection of this right, also in horizontal relations. Although indicating these limits is pivotal for the shape and content of the freedom of artistic creativity, this factor which should be formative is hardly noticed in cited rulings and it has not influenced the established limits of the freedom of art. The cited doubts concerning quotes and parody belong to classic copyright issues. It is easy to see, however, that there is a revolutionary increase in the availability of cultural assets. Already in the first half of the twentieth century, it was necessary to go to a concert to listen to music70 and 50 years ago, in order to watch a movie, one had to go to the cinema, while ten years ago, we had to buy or at least rent a medium containing this work. Now, the method of access to cultural assets has changed entirely, and this is related to the digitisation of cultural content, the creation of a digital environment,71 as well as the

70 B Ivey, How Greed and Neglect Have Destroyed Our Cultural Rights, (University of Califor- nia Press, 2008), 5. 71 Birnhack, supra n 63, 234–235, N Elkin-Koren, ‘Cyberlaw and Social Change: A Democrat- ic Approach to Copyright Law in Cyberspace’, (1996) 14 Cardozo Arts and Entertainment, 269–274.

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194 Mlynarska-Sobaczewska expansion of possible use due to new search functions, playback and distribution of cultural content. These new tools make it possible for anyone, who has the ability, to get acquainted with cultural content selected from an incredibly rich and incomparably broader range in a convenient time and place.72 New forms of broadcast and at the same time an immense raise in the exposition of cultural assets make barriers to accessing culture and some forms of artistic creativity increasingly visible. The importance of copyright is increasing (ip)73 and the conflict between freedom of access and copyright is becoming much more apparent. With digital access, it becomes extremely easy to duplicate and further distribute cultural content. A whole new phenomenon is also the gal- axy of cultural content produced as user-generated content. The dissemination of digitised cultural content is obviously limited by copyright. Establishing the boundaries between the rights of the subjects to which the rights belong and the freedom of expression, artistic expression included, has become the object of many judgments in this field. The issue has been most clearly outlined in two well-known Strasbourg Court rulings. In the first (Ashby & Others v France)74 applicants were sentenced for posting photos made by one of them on the website of a fashion company run by two others. The photos were published without the permission of the fashion house for which the photographer was working, thereby infringing the copyrights acquired by the fashion house. They were sentenced to a fine by the French courts, which rejected arguments on the need to take the freedom of expression guaranteed by Article 10 of the Convention into account and to use the exception in French copyright law, allowing reproduction, representation or public communication of works exclusively for news reporting and information purposes75 (Article 122–9 of the French Copyright Act). The Strasbourg Court held that there was a justified objective underlying the restriction in the form of the protection of the rights of third parties, and that there was no public interest in this case, which would support narrowing the margin of appreciation of the state in the sphere of regulating the boundaries of freedom of expression and balancing the interests expressed by the rights of both parties to the conflict – i.e. freedom of expression and ownership rights (of the fashion house) protected by Article 1 Protocol 1.

72 Ivey, supra n 70, 8–9. 73 Lee, n 57, Birnhack, supra n 57, 233. 74 Ashby Donald and others v France (App. 36769/08), Judgment of 10 January 2013 (2013). 75 D Voorhoof and I Høedt-Rasmussen, ‘Copyright vs Freedom of Expression Judgment’, echr Blog, 22 January 2013, .

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Utopian Concept, Mixed Structure, Digital Extent 195

According to the judgment, the conditions of limitation of freedom of expression provided for by copyright law must be in line with the test contained in Article 10(2), that is, be necessary in a democratic society, provided for by the law and justified, envisaged therein, and pass a three-step test of proportionality. This adds a legal–human perspective to copyright, though in this case it did not provide protection to the author of the work against accusation of publishing it against the will of the acquirer of the rights to the work. It is worth adding that an American court refused to apply the Ashby judgment because of the content of the First Amendment. As stated by the us District Court, fashion shows are public events, open to the public and the press, and a matter of great public interest, for artistic as well as commercial purposes.76 In the second famous ruling on file-sharing (Neij and Sunde v. Sweden),77 the Strasbourg Court also found no infringement of Article 10 of the Conven- tion. Plaintiffs were operators of The Pirate Bay website, which had been offer- ing a file-sharing exchange of copyright-protected material. They have been convicted of copyright infringement on the Internet with very high damages (5 million Euros). The court determined that the issue being adjudicated here required balancing the two interests – that of the plaintiffs, to facilitate the exchange of relevant information, and the interest of protecting the rights of copyright holders – and stated also that there were serious grounds for limiting the plaintiffs’ right to freedom of expression. As the Court considered, however, the actions of the courts and the penalties provided were not disproportionate and fell within the wide margin of appreciation of the state, fulfilling the prem- ise of ‘necessity in a democratic society’ as responding to urgent social needs. In both the Strasbourg Court rulings, there is little reflection on how actions deemed to infringe the copyright holders actually violate them, and how the measures implemented by the state actually protect their interests. Only then can one speak of meeting the requirement of proportionality of the limitation. Accepting automatically that sharing files with copyrighted content violates the authors’ rights is quite a priori and often lacks relevant foundation. Certain- ly, file-sharing enhances the accessibility of culture and artistic expressions,78 which is rarely contradictory to the interests of their authors. Dissemination

76 C Geiger and E Izyumenko, ‘“Copyright on the Human Rights” Trial: Redefining the Boundaries of Exclusivity through Freedom of Expression’, (2014) 45(3) International Re- view of Intellectual Property and Competition Law, 322–323. 77 Neij and Sunde v Sweden (App. 40397/12), Judgment of 19 February 2013 (2013), 56 ehrr se19. 78 J Jones, ‘Internet Pirates Walk the Plank with Article 10 Kept at Bay: Neij and Sunde Kolmisoppi v Sweden’, (2013) 35(11) European Intellectual Property Review, 695, at 699.

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196 Mlynarska-Sobaczewska and sharing of content on the Internet enhances strongly a scope of freedom of expression.79 In addition, penalties and high damages awarded to copyright holders are a drastic measure of protection against such infringements, which hardly cannot be justified as necessary and giving actual effects in the protection of authors’ interests80 – it is easy to design and apply other, less rigorous forms of protecting the interests of creators harmed by such activities. The Strasbourg Court’s decisions made so far remain in the traditional ‘wide margin of appreciation’ paradigm and a rather superficial study on ‘necessity in a democratic society’, leaving the question of access to cultural assets outside the area of interest, as well as considering the reasons for abusive copyright infringements described above. To the contrary, creators and users of artistic content support a completely different scenario on the same subject, letting us look at the issue of resolving horizontal relations in the field of cultural creation in a completely new way. For a dozen or so years, the crusade for the right to free access to culture and knowledge, which is hardly noticeable, has been in the limelight. Since its inception in 2001, the Creative Commons movement and the ‘free culture’ concept have grown tremendously and can already be said to have influenced significantly the flow of cultural content around the world. By January 2016, there were an estimated 1.1 billion works licensed under various Creative Com- mons licenses. This means that their authors have decided to make them available under the terms of the cc, which is more liberal in nature and allows for much wider adoption than traditional, state copyright standards. There are currently many types of cc licenses, but all are based on the fact that one is permitted to copy, distribute, display and perform a copyrighted work and any derivative works based on it under the condition that the name of the original author is reproduced. The unbelievable popularity of cc licenses shows that there is an urgent need to abandon the strict copyright requirements (all rights reserved) for a more liberal formula (some rights reserved), and authors want their works to be distributed and used more widely than ever before. This social phenomenon, however, raises a very interesting question about the law, that is, how the licenses made available by the social movement on the Inter- net change the image of the justiciability of the rights of creators. It turns out that courts in many countries recognise the validity and effectiveness of such licenses more and more often. Although there were cases where the validity

79 E Bonadio, ‘File Sharing, Copyright and Freedom of Expression’, (2011) 33(10) European Intellectual Property Review, 4. 80 R Danay, ‘Copyright vs. Free Expression: the Case of Peer-to-Peer File Sharing of Music in the United Kingdom’, (2005) 8(1) Yale Journal of Law and Technology, 25.

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Utopian Concept, Mixed Structure, Digital Extent 197 and effectiveness of the cc license were challenged,81 users and authors man- age to use this instrument effectively before the national courts. This happened, for example, in the Curry v. Audax Rechtbank Amsterdam case, where the Netherlands court confirmed the validity of licenses under national law.82 This also happened in the case decided by the Spanish court in July 2007,83 in which the court released the bar owner from royalty payments to the collective rights management organisation, because the bar played music only under the cc license. Conversely, in the case examined in 201084 in Belgium, the court recognised the validity of the cc license and stated that there had been a breach of its terms, but refused to apply commercial fares as compensation. Also, other types of licenses that are created outside of the national law (Open Source Artistic License for software) are beginning to be recognised by the courts, so that users can use protected content under conditions designed and proposed by the creators themselves.85 A similar revolution is taking place in the world of science and access to knowledge. The Open Access movement (Budapest Open Access Initiative, February 2002) was launched alongside cc, as an initiative of the founders of the scientific community, promoting the dissemination of their work as digital, online, free of charge and free of most copyright restrictions. According to the founding declaration of this movement: ‘An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge.’ It is difficult to have a better summary of the causes, but also the effects of this phenomenon. The release of culture and knowledge becomes a reality by the conscious resignation of the creators and their rights established within the rigid framework of the existing copyright.

81 Spanish court decision: 29 November 2005, Sociedad General de Autores y Editores (sgae) v. Luis Owlen, RM Olwan, Intellectual Property and Development. Theory and Practice, (Springer, 2013), 343. 82 The District Court of Amsterdam 9 March 2006, Case No. 334492/kg 06–176 sr, see Groklaw, Creative Commons License Upheld by Dutch Court – net, Olwan, supra n 81, 342–343. 83 Madrid Court of Appeal: 5 July 5 2007, Sociedad General de Autores y Editores (sgae) v. Owner of Buena Vistilla Club Social. 84 Le Tribunal de Première Instance de Nivelles: 28 October 2010, Case No. t.n. 10/7597 Lichôdmapwa v L’asbl Festival de Theatre de Spa, . 85 Robert Jacobsen v Matthew Katzer and Kamind Associates, Inc. 535 F.3d 1373, 2007.

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198 Mlynarska-Sobaczewska

This phenomenon cannot be ignored, nor can it be regarded as a normal manifestation of contractual relations between the parties under private law. This is an occurrence of another kind; it leads to the creation of a new, exterior and independent system of copyright than the one officially functioning and sanctioned by the legislative authority and international agreements. Creative Commons licenses and others of similar nature give a new meaning to the horizontality of relations based on them – it is not only the right, which the author alone can tailor, but also the system itself is designed to make the world of creation open up. This phenomenon has so much scope and significance that it has seriously changed the content of access to cultural life, and what is important, thanks to the will of the creators.

5 Positive Duties in Terms of Access to Culture

Finding the standard fulfilling the right to culture, i.e. creating a real possibility of using cultural assets and participating in cultural life is not easy and most disputable, like searching for all the positive duties of states with regard to social rights.86 The Strasbourg Court, however, has stated that actual, effective exercise of rights protected by the Convention is not subject solely to the obligation of the State to refrain from interfering, but may require specific actions to ensure the protection and fulfillment of positive duties.87 As far as the right to culture is concerned, the pursuit of these positive duties has already been done to some extent in the case-law of the Strasbourg court in recent years. The first judgment of this kind is the Akdaş v Turkey case,88 in which the Court considered whether or not the freedom of expression was violated by the publisher’s conviction for publishing in Turkish Apollinaire’s novel, considered to be obscene. The Court stated that the limits of the freedom of expression must be considered in the context of the cultural, religious and customary circumstances of a particular community, but given that Apollinaire’s artistic achievements constitute an important part of European cultural heritage, it is difficult to accept limiting the publication of a novel in one country on the grounds of outraging public decency. Such a ban would deprive recipients in that country of access to a work of art that is an essential part of world heritage and cultural heritage (§30). This ruling means that the freedom of artistic expression in Article 10 also means the right to know the heritage of mankind

86 Donders (2007), supra n 8, 237. 87 Among others: Öneryıldız v Turkey (App. 48939/99), Judgment of 30 November 2004 (2004), 41 ehrr 20. 88 Supra note 11.

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Utopian Concept, Mixed Structure, Digital Extent 199 and access to cultural heritage. This conclusion is treated as a manifestation of the standard of access to cultural life in the Strasbourg jurisprudence, but it seems premature to treat that judgment as a model of positive state duties. The duty of the state authorities is to refrain only from blocking access to the universal cultural heritage rather than providing access through any active action. Similarly, the Strasbourg Court considered infringements of Article 10 by banning the use of the Internet or blocking access to specific sites, as in the Ahmet Yildrim v Turkey case89 in which the Court found a breach of Article 10 by establishing the ban on access to Google sites, as causing deprivation of the right to information not envisaged by the law. The Strasbourg Court’s ver- dict concerning access to YouTube (Cengiz and others v Turkey)90 seems to be of great significance in this regard. In this case, the plaintiffs alleged that the Turkish court blocked their access to YouTube, because some of the materi- als posted by them were in violation of national law, harming the memory of Ataturk. The Strasbourg Court stated that YouTube is of great importance for communicating messages, exercising freedom of expression, not only artistic but also social and political, and such a ban is a violation of Article 10 of the Convention. The Strasbourg court greatly emphasises the importance of the Internet in providing access to information and cultural life.91 It is clear from the case-law that prohibiting access to websites cannot lead to deprivation of access to the medium in an unreasonable manner, unjustified by the need to protect other goods. These are negative duties – prohibiting excessive interference in the exercise of freedom of access. The traces of positive duties in terms of the right of access to cultural assets, however, should be sought in rulings concerning marginalised, excluded groups,92 and also those left in the position of dependence on public authorities – specifically prisoners. Thus, in its numerous judgments, the Court held that there was a violation of Article 8 by depriving people from other countries and cultures of access to television and programs from their home country.93 The case-law is, however, associated with the provision of access to

89 Ahmet Yildrim v Turkey (App. 3111/10), Judgment of 18 December 2012 (2012). Whereas in the case of Akdeniz v Turkey (App. 20887/10, Judgment of 11 March 2014) on the infringement of copyright the Court decided there was no infringement of article 10 by judicial banning of access to some websites because an applicant had access to other Internet sites. 90 Cengiz and others v Turkey (App. 48226/10, 14027/11), Judgment of 1 December 2015 (2015). 91 Times Newspapers Ltd v uk (App. 3002/03, 23676/03), Judgment of 13 March 2009 (2009). 92 Donders (2007), supra n 8, 258–259. 93 See, e.g. Khurshid Mustafa and Tarzibachi v Sweden (App. 23883/03), Judgment of 16 December 2008 (2008).

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200 Mlynarska-Sobaczewska ethnic culture, the right to educate their children in their own traditions and culture, and to maintain ties with their homeland. In several rulings, in particular concerning the rights of detainees or prisoners, and in general people completely dependent on public authorities and in very specific conditions, the Strasbourg Court ruled that the Convention has been violated by failing to provide the plaintiff with a certain range of access to communication. In the case of Laduna v Slovakia,94 the Court found that the detainee’s lack of access and ability to watch television violated his right to develop and maintain ties with the world. In the case of Kalda v Estonia,95 the Court held that prohibiting access to websites, especially on human rights, constitutes breach of Article 10 of the Convention, stating that: ‘Article 10 cannot be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners; however‚ the interference with the applicant’s right to receive information in the specific circumstances of the present case cannot be regarded as having been necessary in a democratic society’ (Section 54). The Court ruled in similar fashion in the Jankovskis v Lithuania case,96 in which it stated that depriving a prisoner of the right of access to university websites for the purpose of enrolling to studies is an unjustified deprivation of the right to information guaranteed by Article 10 of the Convention. In the cited decisions, the Strasbourg Court recognised the need of cultural and educational communication, but also significantly enlarged a scope of public duties in this matter. Although these rulings primarily concern the right to communicate and inform, the standard they designate is significant and may constitute the starting point for determining a minimum level of access to cultural life, as well as the right to individual and social development through access to the media and their content. This standard requires the state to fulfil positive duties to provide access to them.

6 Taking Progressive Realisation Seriously – Futurology of the Right to Culture

The instruments available to the Strasbourg Court are limited to the interpretation and application of the rights and freedoms provided for in the

94 Laduna v Slovakia (App. 31827/02), Judgment of 13 December 2011 (2011). 95 Kalda v Estonia (App. 17429/10), Judgment of 19 January 2016 (2016). 96 Jankovskis v Lithuania (App. 21575/08), Judgment of 17 January 2017 (2017).

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Convention. A picture of the minimal content and scope of artistic freedom and access to cultural life, however, emerges from them. Yet, we must bear in mind that, in the case of the right to participate in cultural life, national courts are not completely defenceless, and individuals are not deprived of the possibility of protection and demanding the assurance of rights, including positive state duties, underlined by the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights and the Committee’s General Comment No. 3.97 The right to culture must be linked to the conduct of cultural policy, like social rights are connected to social policy.98 The prohibition of regression and the core content of law must be considered in relation to the status quo – and regardless of the state, it is always based on already existing cultural policy and actions taken in the sphere of artistic culture carried out by the state and other public bodies. In European culture, countries adopt a public patronage strategy99 based on three assumptions:

(1) cultural life needs financial support; (2) there is a difference between high culture and other human activities (like entertainment), which can be regarded and established in a suffi- ciently clear way; (3) public bodies are to ensure the quality of cultural goods delivered to the people and access to high culture.

This means that cultural policy must be pursued through the financial support of artistic creativity, preceded by the requirement of aesthetic judgments. The opinions on art must be legitimate,100 and thus expressed by relevant bodies. Based on that, the one arm’s length principle has been developed, namely the principle of dividing and allocating funds for artistic activity by expert bodies independent of political authority and endowed with authority among artists.

97 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), adopted on 14 December 1990 (Document E/1991/23). 98 K Rittich, ‘Social Rights and Social Policy: Transformations on the International Land- scape’, Barak-Erez, Gros, supra n 34, 116. 99 HH Chartrand and C McCaughey, ‘The Arm’s Length Principle and the Arts: an Interna- tional Perspective – Past, Present and Future’ in MC Cummings Jr and JM Davidson (eds.), Who’s to Pay for the Arts: The International Search for Models of Support, (American Coun- cil for the Arts, nyc, 1989), 43–57. 100 C Sunstein, ‘It’s the Government Money: Funding Speech, Education, and Reproduction’, in C Sunstein (ed.), The Partial Constitution, (Harvard University Press, 1998), 309.

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The granting of funds for artistic activities must take place following certain procedures, including the right to appeal to courts, as any aid granted using public funds. In European countries, it is slowly becoming evident that such a standard is being developed. In most countries, funding for culture is granted through competition procedures and by independent arts councils (Austria, Germany, uk, Netherlands, Poland, Portugal, Sweden).101 It is becoming increasingly important to establish a standard for the allocation of funds for artistic creativity in the sense of the minimum requirements for the independence of authorities deciding on the allocation, the transparency of procedures and their criteria. This is certainly an important condition of the freedom of artistic creativity in the context of positive state duties. Another component of the right to culture within the framework of state legislative and social policy activities is the determination of the status of artists in terms of their social rights and security. The unesco Recommendation concerning the status of the artist (1980) declares that there is a need to make sure that persons engaged in creative work have appropriate social status, with necessary social security, preventive medical care and pension conditions, and there should also be mechanisms to secure such professions in the public sec- tor, among others. In many European countries, social protection mechanisms for artists have already been present in many forms, like adopting specific laws on social security for artists (Belgium, Austria, Bulgaria, Finland, France, Germany)102 or by providing other specific measures for short-term employed or self-employed artists (Netherlands, Slovenia, Serbia).103 Similar policies apply for taxation mechanisms that are designed to create favourable conditions for artists to perform work and generate income, like costs of revenues and longer tax settlement periods convenient for artists earning mutably. The last sphere of state activity is the creation of conditions for access to cultural assets – both in terms of national heritage and in contemporary artistic life. Facilitating systems operate in almost all countries, taking the form of free access to museums, special offers for certain groups (the youth, pension- ers), cultural education, as well as digitising the collections and sharing them online.

101 See Compendium Cultural Policies and Trends in Europe, ‘Public Bodies Responsible for National Cultural Policies/Development’, . 102 Ibid, ‘Social Security Laws and Measures to Support Self-employed Artists’. 103 Ibid.

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In many European States, such standards of cultural policy have already been largely worked out. They create a system of legal and administrative measures to fund and maintain artistic culture – as it can be seen by public bodies. Methods of justiciability and some socio-economic rights, established by international and domestic courts, like the ones briefly described above, namely the prohibition of regression, the ban of arbitrariness of solutions and the principle of proportionality and reasonableness of measures in this regard could lead to the introduction also in this area of right to culture of judicial determination of the level guaranteed by already conducted state policy and legislation. Therefore, it can be assumed that development of the right to culture content, also in terms of positive obligations to fulfil this right, is only a matter of time. Thus, in this respect, the right to culture – meaning the culture supported in a transparent and fair manner by the state, as well as the protection of the status of creative professions and opportunities of access to artistic culture – may become justiciable, especially within judicial control of administration. The right to culture as an individual right to participate in cultural life has arduously become a part of the human rights system, in international as well as in domestic legal orders. International and national law concerning cultural rights generally treat it as a right of a progressive nature. Constitutional formulas also regard it as a state task or programme, according to the somewhat utopian concept of guaranteeing the right to participate in highbrow culture, which in essence is elite. Notwithstanding, the Strasbourg Court’s case-law provides examples which constitute protection of the right of individuals to cultural life within the context of the freedom of artistic creativity and its borders. Strasbourg Court jurisprudence under article 10 of the echr brought some stirrings of positive obligations of states and their public bodies to provide some services and ensure the protection of freedom of artistic creativity and freedom of access to cultural life in the horizontal sphere. In regard to deciding on the limits of freedom of artistic creation, however, there are many different and even misleading paths. Based on European and domestic courts’ decisions, it is still difficult to indicate the developed standard of the freedom and the right to participate in culture or even the tendency to define their limits. This is even more apparent in digital culture. The dissemination and sharing of cultural content on the Internet enhances strongly a scope of freedom of artistic expression and gives new opportunities to create and disseminate cultural goods. The need to liberalise limitations of creativity and access to it in horizontal relations has become more apparent, and massive social movements can be a proof that the right to culture should bring more

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204 Mlynarska-Sobaczewska claims and narrow a scope of ip rights. The most interesting part of the right to culture, however, is still to be written. The right to participate in cultural life was conceptualised as a ‘second generation’ right and has to be connected with cultural policies, provided by the state. Therefore, the individual right to culture should help to establish the standards of cultural policy concerning financing, providing and facilitating artistic and cultural activities.

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