Access to Culture, Media, Information in the Digital Age

Paul de Hert, Brussels

The Meaning of ‘Access’ in the Human Rights Context

The relationship between ‘access’ and human rights is strained and in constant need of careful balancing. Conceivably, one’s access limits the unhindered enjoyment of another’s basic right. For example, while one has the right to real estate property, another’s access (right of way) rights restrict such enjoyment. Patent rights, after all, only last for twenty years. Or, while one has the right of expression, (lawful) quoting limits the original thinkers’ ideas. Or, one’s right to research is, as all academics know too well by now, limited by the public’s access rights to such research results. In other words, while human rights are at their core ‘inward’ looking, specifically designed to protect individuality, the act of ‘access’ performs essentially a social function: By definition access means participation into something that does not belong to the participant. Whether this participation ought to be encouraged or discouraged, granted or prohibited, and under which terms and conditions each time, this is exactly where the tension between the notion of access and human rights lies.

Of course, there is another category of human rights, the so-called positive or social human rights, where access resides in fact at the core of the right itself. In this case access constitutes the actual right, for example one’s right to access education. Access to such public, non-proprietary goods poses no serious challenges. However, when access is requested to man-made, and owned, goods, such as the Internet, culture, science, or information, then the above conflict is raised once again: One’s right to access is another’s limitation of the right to fully enjoy a good he or she has created or lawfully owns.

An act of balance, as is so often the case in the field of human rights, is therefore needed in order to regulate this inherent tension. This balance needs to carefully assess and establish when access is transformed into intrusion or when the social good takes precedence over private interests. Even in cases that may appear at first sight harmless or in any event neutral and well-intentioned, for example access to culture, the need for identification of the contrasting interests remains: Although everybody would readily confess that public access to culture can only be good both for society and for creators, who self-evidently wish their work to be accessed, and used, by third parties, still questions may be raised as to, for example, the permitted acts of access (permitted reproductions) according to the perspective of the artist, his or her followers or, even, society. Or, doubts could be raised as to whether access to information, regardless whether personal or factual, needs to be unrestricted. Or, whether access to the Internet, where private companies pay the bills necessary for it to function properly, should be treated on an egalitarian basis (equal access to all) or on a meritocratic basis (whoever pays more gets better bandwidth). Given the inseparable connection between these questions and technological developments as well as modern lifestyle, this topic is practically inexhaustible. The brief analysis that follows will only attempt to identify some tensions falling within this field and, in this way, to demonstrate the complexity hiding behind such otherwise worthy causes and pursuits as access to culture, media and information.

Digitisation of Information; a Challenge for Human Rights, but Maybe the Solution Lies Therein

Particularly with regard to culture, information and the media, the qualitative change that occurred over the past few decades and transformed the notion of access refers to the digitisation of information. Works of art, cultural goods, artefacts, entire collections, rather than remaining idle in their place of origin or storage, have been reproduced electronically in an intangible yet accessible format. Inherent physical restrictions were thus raised: While for the past three thousand years of known human history individuals had to travel in order to access information or cultural goods, during the past thirty years this can be done from the comfort of their homes. The profound effect of digitisation on the notion of access hardly needs to be explained. Where the term was used in the past in order to describe at best local visiting rights of the few, after the digitisation of information the same right was granted to the masses. While the actual physical goods do maintain their value, and are the coveted acquisitions of museums and collectors across the globe, the term access is no longer used to describe the rights of visits to a museum, an archaeological site or a concert. Instead, today it is commonly used to describe the right of individuals to enjoy an electronic reproduction of a cultural good or other product of the human intellect whenever and in any way they please.

In addition to the above qualitative change, an equally important quantitative change was brought forward through the advent of the Internet. Digitised reproductions of cultural goods or other information would do little good to humanity if they had to be exchanged in the real world, by way of physical exchanges of the magnetic means upon which they are recorded. The Internet afforded to individuals and organisations the option to freely and immediately broadcast information to the whole of the world regardless of their place of residence. In this way already digitised information broke their local boundaries and were made available to anyone, anywhere on the globe. Moreover, the Internet dealt the final blow to the traditional distribution channels of these few categories of cultural goods (namely, books and music) that were prima facie unaffected by the digitisation of information described above. Individuals, although they actually never needed to travel in order to purchase a book or a music recording, are no longer dependent on the exhaustible resources and storage capacity of their local shopkeepers. Electronic commerce applications enable direct access, and immediate download, from any place in the world, crushing in this way any last trace of control publishers and other rights holders hoped to maintain over intellectual property goods.

The above two developments led to the well-known extreme of Internet piracy, namely the unlawful reproduction and mass sharing over the Internet of protected, proprietary material. At times these unlawful practices were attempted to be justified on the basis of such notions as public access. While an argument that would otherwise merit some analysis, the volume of these unlawful reproductions was such that established case law by now regards them as infringing the rights of rights holders and therefore prohibited. In the meantime, however, entire well-established industries, such as the music industry, were brought to their knees, presumably never to return to their former glory. The film industry these days faces more or less the same predicament. The only thing that keeps the traditional publishing (book) industry protected, for the time being at least, is that individuals are not accustomed to reading on screen. Technology has changed the way humans access and use culture and information; their right to access has exponentially grown to threaten the very reason of its existence, culture itself.

Internet Access (and Content Suppression)

The term ‘Internet access’ in the human rights context has a twofold meaning: access to the Internet and, once online, access to content on the Internet. With regard to the former, while several countries across the globe have introduced a (social, under the distinctions made above) basic right to access the Internet in their constitutions, still the right cannot yet be considered established. A number of reasons make this development unlikely. To begin with, the exact content of such a right may create confusion: what is actually meant by ‘access to the Internet’? Does it include a state of the art Internet broadband connection for all? Or would even a dial-up connection availability suffice? Does it also include installing public Wi-Fi hotspots everywhere? And, in each case, at what price? Should all this be provided for free? For a reasonably low price? At market value? Even if these questions were resolved, still the basic question would remain to whom exactly is this right addressed. Is it addressed to the state that needs to take all necessary measures? This could be a potentially tricky question, given that the Internet market is primarily a private market and state intervention would border on competition distortion. Or, could this right be addressed to private parties (Internet providers) as well, enabling for instance employees to ask their employers for Internet access in their workplace regardless whether necessary while executing their work? This however would mean that a state’s constitution awards rights, and places obligations, upon and between private parties, a legal theory (‘Drittwirkung’ theory) still not undisputed among legal scholars. Finally, some confusion may even exist as regard its beneficiaries: While it is clear that individuals will be its primary intended recipients, would that be a right also addressed to legal persons (corporations, non-governmental organisations, associations, foundations, etc.) as well? Or even, could telecommunications companies potentially profit from it, asking the state to make the necessary investments, and procure relevant public works, so as for this right to be effected? In view of the above confusion, while a worthy cause and well-discussed case, it is unlikely that the right of individuals to be provided with access to the Internet will be firmly established as a basic human right any time soon.

On the other hand, once online Internet users may (or may not) have a right to access Internet content. In this case the term Internet content denotes digital content published over the Internet. Such digital content usually includes software (all webpages and Internet services essentially constitute computer programs), text, pictures, music and video. It therefore remains to be seen whether in this case there exists a right of Internet users to access such content, and, if yes, under what terms and conditions.

Despite its origins and rhetoric, the Internet is a proprietary medium. Notwithstanding ‘cable’ technicalities (that however will be briefly examined below, under net neutrality) the Internet is essentially run, and belongs to, digital content providers. These can be anything from huge Internet social networks providers or search engine providers, to humble, simple users that upload a few webpages about themselves or about any specific topic over the Internet. In addition, one ought not forget that any single webpage or Internet site are essentially computer programs. Taken together, all these Internet publishers are the rights holders over the Internet. Do users have a right to access their content? Or are the publishers free to enjoy their proprietary rights unhindered, imposing any rules they please upon access to their content?

The simple reply to this question is that rights holders of property (proprietary) rights over the Internet enjoy more or less the same rights as these of the natural world: unhindered enjoyment of their (intellectual) property, except from some restrictions placed upon it in order to serve the, perceived, public good. Consequently, if seen from the users’ perspective, a right of access to Internet content outside the license terms of rights holders exists only in these few cases where the law expressly grants it. In particular, access to Internet content is provided to Internet users by means of an ‘end user license agreement’. This agreement is usually incorporated into the respective websites’ terms and conditions. It regulates the manner under which any Internet user may access and use content (including the computer program itself) found on any specific Internet site. Any user action exceeding this limits is to be considered unlawful.

While the general rule is that an Internet user’s right to access Internet content does not exist outside the borders of the respective license agreements, there are cases where the laws applicable each time grant to individuals a right to access regardless of the same license stipulations – or, for the same purposes, the rights holders’ will. These are the cases, for instance, of limited reproductions or reproductions for educational purposes in the EU sui generis database right context; Or, access to the source code of computer programs for interoperability purposes, in the computer programs EU directive context. Under the same category of access rights would probably fall special notions in the copyright doctrine like ‘fair use’ or ‘private copy’. In the same context, the recent right to data portability in the EU General Data Protection Regulation (in its Article 20) is aimed at providing to individuals (Internet users) with access to their profile information over Internet social networks in an accessible and machine-readable format in order for it to be transferable to other similar platforms. While the above are all cases of a right to access by Internet users, if seen from the reverse point of view, they constitute the only ones available, in the sense that whatever is not prescribed by law is not allowed (as regulated by the terms of the license imposed by the rights holders).

Internet content suppression turns the focus of the right to access Internet content to another realm, that of national security or criminal law. The Internet has become a potent medium of communication, directly affecting the lives of hundreds of millions of its users that use it daily for anything from entertainment to information or work. In this context, national governments across the globe frequently feel tempted, or obliged, to intervene on content made available on it. The purposes of such intervention may vary considerably to include anything from national security to prohibiting access to illegal content or even combatting Internet piracy. The means to accomplish an Internet content suppression effect could involve both legislative and technical measures. However, because such practices ultimately impede the possibility to access, receive or impart information and thus impose restrictions on an individual’s right to freedom of expression, they need to be carefully balanced, the principle of proportionality (a necessary measure within a democratic society) being a useful tool to this end.

Net Neutrality

While the net neutrality discussion may sound technical and outside the borders of a human rights approach on culture, media and information, because it is intrinsically connected to the (right to) access the Internet, it is believed that brief mention ought to be made to it within the limits of this analysis. In short, the debate on net neutrality develops upon the telecommunications providers’ complaint that, while it is them that provide and pay for the necessary infrastructure upon which the Internet runs (essentially, cable installation and operation), they are not compensated for their services; instead, it is Internet companies (the providers referred to above) that make the profit out of the Internet without paying anything for its necessary infrastructure. The debate culminates into the request by the complainants (the telecommunications companies) to be compensated for their services. Their preferred model is that of ‘bandwidth prioritisation’, meaning that they would be allowed to charge differently by users or content or application or protocol etc. Therefore, net neutrality denotes exactly the opposite, the undertaking by governments and providers that all Internet traffic be treated equally. Its counter-arguments range from basic human rights’ line of thinking (there can be no scalable approach to a human right or, even in the case that such a status is not acknowledged to Internet access, a necessary instrument for the exercise of other human rights) to the important concerns raised by any other alternative (namely, that a scalable approach raises the question who chooses which content is made available to which individuals).

Regardless of the merits of each side’s arguments, from a human rights point of view net neutrality is instrumental to individuals’ access to culture, media and information. Keeping in mind that the Internet constitutes today the preferred, if not necessary, medium of dissemination of all relevant information, unhindered, unprejudiced access to it is imperative in order to warrant to individuals open passage to such information. On the other hand, this does not necessarily mean that access to the Internet itself should be provided on an egalitarian assumption or in a non-scalable manner. While a worthy cause, equal access rights to all is conditional upon the, mostly private, actors involved in making it possible. Space for price differentiations may or may not be advisable, depending on each society’s circumstances and particularities.

Within the EU the right to net neutrality (or, as per its own terms, the ‘open Internet’) today is firmly established. Special legal provisions (Regulation 2120/2015), that came into effect on 30 April 2016, not only warrant to individuals access to the Internet content and services of their choice but also provide them with an enforceable right to this end. The EU approach to this matter is that no blocking or throttling of online content, applications and services is allowed within the EU. All traffic has to be treated equally, meaning without any paid prioritisation of traffic in the Internet access service. Exemptions to this rule are limited (three exhaustive cases: compliance with legal obligations; integrity of the network; congestion management in exceptional and temporary situations) and users are free to use their favourite apps no matter the offer to which they subscribe. Consequently, the discussion at least for the foreseeable future within the EU is decidedly closed, in favour of open, egalitarian access to the Internet, and the information it holds, to everybody.

Access to Information

The right to access information occupies a distinct sub-category within the above analysis on the strained relationship between the notion of access and human rights, because in this case ‘information’ is not necessarily to be perceived as proprietary. Although it is to be expected that information has been created by somebody, and that somebody owns it, variations to this basic model may be found in practice: for example, the ownership link may be weak by definition, for instance when the creator of information is the state, or ownership rights may have expired or may have been diminished by choice of their own holder. Each one of the above instances, in other words any relaxation in information’s ownership regime, leaves space for development of an individual’s right to access such information. Indeed, the discussion around a right to access information mostly evolves around the right to access governmental information (cultural information obviously constituting a subset of such information), that is usually effectuated through a relevant ‘freedom of information act’ that is ultimately connected with a ‘right to know’.

From its part, the term ‘information’ itself may denote anything from simple, mundane data to highly sophisticated data usable only by experts. In addition, it may be made available in a variety of formats (electronic or paper constituting the basic distinction), whose usability may differ substantially and may ultimately affect gravelly the exercise of the right to access it. Finally, as outlined above, their proprietary status may differ, allowing certain (for example, household) but prohibiting other (for example, business) uses. This is why when talking of a right to access information special attention should be given to the particular circumstances accompanying it. Such modalities could also include a positive obligation of the state to provide information, including addressees such as vulnerable groups with reading or language problems.

Keeping the above distinctions in mind, the individual’s right to access information is firmly established by now in the list of basic, fundamental human rights. As highlighted in the keyword analysis that follows, apart of course from Article 19 of the UDHR, the UN Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (Aarhus Convention) can be seen as the most powerful international legal regime concerning access to governmental information for everyone. It covers notably governmental information on ‘cultural sites’, which are defined in Article 1 of the UNESCO World Heritage Convention, 1972, and could indeed be a model for legal instruments covering freedom of information in other domains, such as culture and media. In Europe, the ECtHR has found that Article 10 of the ECHR, that broadly follows the wording of Article 19 of the UDHR, constitutes a principle right of access to governmental information for journalists, as well as researchers, and for non-governmental organisations. With regard to EU institutions, Article 15 TFEU secures a right of access to official documents for everyone in the framework of a general ‘concept of openness’.

The benefits of providing efficient means and opportunities to individuals to exercise this right are substantial: among them democratic participation and understanding, redress of past harms, improved decision-making processes as well as protecting other fundamental human rights are listed. Cultural information, depending on its ownership status, may be found at the epicenter of such an individual right to access it. Individual participation in cultural life, as analysed in the relevant keyword analysis that follows, is dependent upon its access to information. If access is prohibited or disproportionately burdened, then culture becomes irrelevant to these individuals who may not profit from all related information.

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