An Access Right to Essential Information

AUTHOR
Chris Zielinski

ABSTRACT

Is there an access right to information? While this issue was always an underlying and generally unspoken assumption in debate on information for the developing world, now with the tightening global legal infrastructure, the developing countries need to address this issue formally, rather than essentially evading it by turning blind eyes and generally being lax in enforcement of their copyright regimes, where they existed at all.

In copyright discussions, we are prone to treating information as a monolith. “Information” – or “content” or “knowledge” or “wisdom” ? – seems to comprise everything from soap operas to scientific communications, from details held by governments about individuals to public information, from advertising to commercial and trade secrets. In fact it makes a great deal of difference when embarking on discussions about intellectual property regimes and rights to split this monolithic approach into smaller chunks, if not right down to conceptual pebbles. This introduces a level of complexity that we have shied away from to date, although this may be an inevitable by-product of a world which has focused its most intelligent efforts on increasing the information density of all its exchanges – social, technological and economic. Evolution seems to be about increasing information density, and legislation has to begin to follow this path as well.

This paper will build on the present author’s work over the last ten years on the issue of identifying whether there is such a thing as an access right to “essential” information – the unhindered right to access such information without any legal, technological, financial, geographical or other barriers.

Everything that is said about access rights to information is either treated in the context of exceptions (e.g., use of texts for private study or citation, home or academic taping of video for time-shifting purposes, etc.) or sweepingly in statements along the lines of “copyright is good/bad because?” Neither of these is adequate to real-life complexity. Debates around these issues rapidly head down simplistic and absolutist paths: “Information wants to be free”, “copyright should be abolished”, “exceptions should be abolished,” “encrypt everything,” – these are all repeated or applied, but none of them make much sense taken across the board.

In fact, there are different types of information with different access rights. One can readily find examples of information to which nobody should be able to claim a moral right to access – commercial and trade secrets, for example, almost by definition, even though this may well include criminal and morally suspect information. The debate around powerful encryption can be read as the government seeking to assert an access right to information which the owner wishes to keep secret.

As has been noted, this debate is generally conducted in absolute terms – either for or against ownership rights. This paper has no bias towards either end of this spectrum – or rather, it has a bias towards both ends. It asserts that different ethical positions apply to different types of information – and that the legal system does not distinguish between the two.

Is there an access right to most entertainment content? While we may want to have unhindered access to music, novels and films, there does not appear to be a good argument that the human race has a legal or moral right to be entertained. Going to the other extreme, there are clearly categories of information to which there either already is, or to which a strong case can be made for, an access right. Freedom of Information acts in many countries identify the citizen’s right of access to government information. Other legal instruments spell out the rights of access to confidential information held about the citizen by public or public-licensed bodies (including the legal and medical professions, religious groups and the like). It could be argued that this way of putting the argument masks a bias towards ownership. The question “Do people have a right to be entertained?” obviously begs a different answer than “To what extent is a limited monopoly for entertainment providing support for science and the useful arts?” The author acknowledges that at present the entertainment and scientific information world are merged under a single copyright framework, so that to accept the ownership of entertainment information is tantamount to accepting the ownership of essential information (defined below). This position will be made explicit and challenged. In fact, as the paper will argue, there are currently opportunities to split the fields in relation to new digital legislation.

One step short of this emerging legal environment (although not without precedent in law) is what the present author has been calling “essential information”, borrowing the concept from “essential drugs”: information that is essential to human survival. It comprises the things we need to know to survive, to be healthy, to plant the right seeds, to feed our families correctly. It includes information related to the basic minimum needs of humanity, information tools for trade and economic development, information essential to the development of backbone industries, basic science and survival services in health, education, welfare, agriculture and labour. A strong argument can be made for such information to be treated differently from, say, trade secrets or entertainment information.

To conclude, there are a number of provisions for an access right to essential information in the international legal environment – from rather vague statements in the Universal Declaration of Human Rights, to the relatively minor exceptions allowed in international and national copyright legislation, to an explicit and large loophole provided by the Paris Act of 1971 (revised 1978) to the Berne Convention, which provides developing countries with the right to translate “educational materials”, by statutory licence if necessary. All of this needs to be brought together and updated for the electronic age, and the present paper aims to provide a contribution to the upcoming debate.

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