Human Rights and Copyright: Human Rights Challenges to Criminal and Online Copyright Enforcement in Latin America
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Silva, Alberto J. Cerda
Copyright protection and human rights are in tension through Latin America. Historically, countries in the region have strained public interest in general, and human rights in particular, when implementing international commitments on intellectual property into their domestic law. This creates a risky situation today, when those countries are required to implement new commitments tailored for criminal and online enforcement, such as taking down online infringing content, criminalizing noncommercial infringement, and disconnecting copyright infringing users. This dissertation explores the challenges and advantages of the Latin American legal regime when regulating copyright enforcement through criminal law and in the online environments in compliance with human rights. The dissertation has been divided in three parts. The first part (Chapters I to III) provides a general background on copyright and human rights in Latin America, analyzes the historical development of copyright law, and extracts some lessons from the process of implementation of international copyright obligations into domestic law. The second part (Chapters IV to VI) analyses the criminal enforcement of copyright by reviewing the current law and its actual application to two basic issues: criminalization and punishment. The third part (Chapters VII to IX) focuses on certain measures of online enforcement, which are: identifying online users, disconnecting internet subscribers, and taking down content. The second and third parts analyze how copyright regulation may infringe some human rights. This analysis does not focus on either freedom of speech or access to knowledge, which have been the subjects of abundant literature. Instead, the analysis focuses on a set of civil human rights, such as the right to privacy, due process of law, and the presumption of innocence, among others. This section may contribute to filling a gap in the human rights analysis of intellectual property regulation. It also provides support for current advocacy and policymaking, as well as legal background for potential litigation before domestic courts and in the regional human rights system. This dissertation contributes to a comprehensive view on a matter of public interest, namely the human rights implications of copyright regulation, particularly in relation to its criminal and online enforcement. Rather than closing an argument, human rights open a new perspective for discussion. Although human rights are essential for human and societal development, those rights are limited and, therefore, they allow for certain limitations. Enforcing copyright, which are essentially private rights, may require limiting human rights to a certain extent, but in no case should that enforcement derogate human rights. Highlighting the intersection between copyright law and human rights is a key issue for Latin American countries, especially for those that have assumed international obligations on the matter, and must navigate the complexities of updating their domestic copyright law to digital technologies and the online environment.
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