What is the Appropriate Role of Companies in the Field of Cultural Rights?
When I started advising technology companies on freedom of expression in the 2000s, there was little authoritative guidance that focused on the role of companies as distinct from the role of states. This changed during the 2010s when a flurry of reports from the United Nations—notably reports published by David Kaye, then the Special Rapporteur for Freedom of Opinion and Expression—addressed the role of companies head-on. This greatly enhanced our shared understanding of the actions that technology companies should take to meet their responsibility to respect freedom of expression.
I believe we would benefit from a similar leap in our shared understanding of the appropriate role of companies in the field of cultural rights. This has become especially urgent given the growth of streaming, the evolution of ad-based business models, and the emergence of generative AI, all of which raise several pressing questions about the role of companies in protecting, respecting, and fulfilling cultural rights.[1]
The right to participate in cultural life is set out in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR):
UDHR Article 27: Everyone 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.
ICESCR Article 15: The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Culture is coupled with science in these Articles; however, I have previously written about the role of companies in respecting the right to science, so this article focuses on cultural dimensions.
Since 2009, the UN has maintained a Special Rapporteur in the field of cultural rights with a mandate to (a) give greater visibility to cultural rights in the human rights system; and (b) foster a better understanding of the severity of their violations, and of the opportunity of their realization for all. The UN Special Rapporteur has focused on a variety of issues relating to cultural rights, such as cultural heritage, the importance of public spaces, and artistic expression. There is a helpful summary of the thematic reports, and I had a rewarding time reading all of them to improve my understanding of cultural rights. The reports provide excellent insight into the breadth of issues relating to cultural rights and greatly informed the analysis that follows in this article; however, while the role of companies is often referenced, most recommendations are directed toward governments, civil society, and the UN system itself, rather than to companies.
This article starts by setting out why access to culture is an important human right and then describes six issues where the role of companies is important for the realization of cultural rights. The article then explores these six issues in more depth by surfacing key questions and proposing priority areas for further exploration. The article concludes with observations about what the role of companies in relation to cultural rights might tell us about the current state of the business and human rights field more broadly.
Why are cultural rights important?
The right to participate in cultural life is intrinsically important in and of itself, and important via its connection to many other rights.
Culture is at the heart of being human, with artistic expression an important means for everyone to develop and express their identity, humanity, and creativity. Culture is fundamental to human dignity and autonomy, and making, participating in, and enjoying culture is how many people assign meaning to their lives. Culture is not simply about entertainment, but also about contribution to debate, dialogue, and political discourse; in that sense, culture is essential to the functioning of democratic societies. Rightsholders in the context of culture include professional and amateur artists and creators, all those participating in the creation, production, and distribution of art and culture, and everyone receiving art and culture as audiences.
Human rights are interdependent, interrelated, and interconnected, so cultural rights also play an important role in protecting, respecting, and realizing other human rights. Freedom of artistic expression and creativity is obviously closely linked to freedom of opinion and expression, but also intersects with rights to education, non-discrimination, freedom of assembly, freedom of thought, conscience, and religion, and the right to participate in government. Some types of content can have broader systemwide implications for human rights, such as the way torture is depicted in film or how different cultures, races, or genders are portrayed in content. Like other rights, any restrictions to cultural rights must meet the requirements of legality, legitimate aim, necessity, and proportionality.
Why are companies relevant for cultural rights?
Companies increasingly influence the right to paricipate in cultural life. For this reason, it is important for us to grasp the risks and opportunities presented by companies and agree the appropriate actions that companies should take to protect, respect, and help fulfill cultural rights. The impact of companies on cultural rights includes, but is not limited to, the following six issues:[2]
Commissioning, producing, and distributing content: Companies can play a key role throughout the production process, from commissioning and buying to transmitting and distributing content across a wide range of genres and platforms. Decision-making at every stage of the production lifecycle can impact cultural rights.
Advertising and commercial content: Companies create vast amounts of advertising and other commercial content that play a significant role in the overall information environment. Advertising-based business models can influence content availability, distribution, and promotion.
Copyright and intellectual property: Copyright specifically and intellectual property more broadly have distinct commercial and human rights dimensions, and there is an interplay between protecting authorship while also promoting innovation and creativity.
Generative AI: New debates have emerged around the use of “publicly available content” (as distinct from “public domain content”) to train generative AI models and how different languages, cultures, and perspectives appear in generated content.
Travel and Tourism: Companies are active throughout the travel and tourism value chain and therefore play an important role in issues such as cultural heritage, access to culture, and cultural commodification.
Sponsorship: Companies are often the sponsors of spaces in which culture and artistic expression have a platform, including museums, film festivals, and galleries.
Commissioning, producing, and distributing content
Companies play an important enabling role in the production process as the source of the funding, resources, and platforms essential for turning ideas into reality and reaching audiences. One starting point for the role of companies would be the notion that they should not curtail or infringe upon the freedom needed for artistic expression. However, companies may place restrictions at any point in the production process, from the development of the idea through to production, performance, publication, and distribution. It will be important to identify best practices throughout this production lifecycle from a human rights point of view.
One important best practice relates to how companies respond to government efforts to curtail artistic expression, such as when governments demand the removal of specific scenes, episodes, and storylines from content being created or distributed in their jurisdiction. Here, companies can take inspiration from the Global Network Initiative Principles for Freedom of Expression and Privacy for when and how to challenge these demands, though it is important to acknowledge that the dynamic in a professional media context is quite different from a search or user-generated content context. It will be important to unpack the relative roles played by creators, production companies, and distributors in pushing back against overbroad government restrictions and establishing clarity on who the final decision-maker should be. Put another way, what happens if the creator is less (or more) willing to sacrifice original creative intent than the distributor? Who decides? Who has the power and responsibility to make that decision?
Pressure to place limitations on content may not be limited to governments because other powerful stakeholders—such as advocacy organizations, lobbyists, and religious authorities—may pressure distributors to restrict content, using reputation rather than regulation as leverage. What happens when companies restrict access to controversial works under pressure from stakeholders and communities? Here again, questions of responsibility, power asymmetry, and decision-making arise. Might the distributor be more (or less) willing to give in to pressure than the artist? Who decides?
Another important set of questions arises in relation to “prior censorship,” which occurs before the production or publication of an artwork, such as movies, plays, or public art, with the purpose of proscribing content, prohibiting its public presentation, or preventing its creators from working towards its realization. As a matter of principle prior-censorship bodies or any system that requires official clearance before content can be released should not exist, but is there an equivalent of prior censorship inside companies? What are the appropriate guardrails, protections, policies, and standards for how companies influence the creative process? Companies have a legitimate interest in establishing content standards (such as how torture, tobacco, weapons, or drugs are depicted in film), and indeed this is also an important human rights responsibility for them. However, when do these legitimate interests and reasonable responsibilities cross a line into prior censorship? How should the principles of necessity and proportionality be interpreted in the context of the production lifecycle, and how do we ensure that undue constraints are not placed on more provocative and controversial content?
Finally, it will be important to consider the role of companies in distributing and enabling access to content, including the role that recommender systems play in helping determine the mix of content that audiences become aware of, consume, and participate in.
Advertising and commercial content
The presence of commercial advertising in public spaces and its wide dissemination across a variety of media platforms may also impact cultural rights. Commercial advertising is a form of freedom of expression, but one that should be granted less protection than other forms of speech, and there are several important questions to address about the impact of commercial advertising on cultural rights.
For example, it will be important to consider whether a disproportionate presence of commercial advertising may have an adverse impact on cultural diversity, values, and practices. Historically, a primary concern in the field of commercial advertising was the risk of cultural homogenization and the growing dominance of a small number of big brands available everywhere. By contrast, a primary concern today is targeted advertising and the risks it may create for privacy, non-discrimination, and freedom of opinion. However, a case can be made that targeted advertising acts as a counterweight to cultural homogenization by providing opportunities for small and medium-sized enterprises to reach customers they might previously have been unable to and for commercial advertising to become more diverse. Here, we should review whether business models based on targeted advertising offer a pathway towards more cultural diversity and media pluralism and protect people from distortion by a small number of rich and powerful groups, and how to address the obvious human rights risks (like privacy and discrimination) that accompany these business models. One of the critical challenges in the business and human rights field is that different rights can sometimes be in tension with each other, and an important priority is to develop approaches that respect competing rights to the maximum extent possible.
Several other impacts on cultural rights merit attention in the field of commercial advertising, such as the rights of children concerning education, learning, and leisure, how different communities may be portrayed in advertising, and whether we have the right to opt out of receiving advertising, a question that is currently being tested in the European Union. We should also consider whether respecting cultural rights implies that companies should make otherwise commercial advertising space available to non-profit organizations for their marketing and communications.
Copyright and intellectual property
The relationship between copyright and cultural rights is complex and nuanced, and at least three issues need to be addressed: the tension between protecting the moral and material rights of authors and creators while expanding opportunities for everyone to participate in cultural life; the distinction between “protection of authorship” and “copyright protection”; and the rights of Indigenous peoples to self-determination and to maintain and develop their own culture.
On the first issue, the right of everyone to benefit from the protection of the moral and material interests resulting from artistic production of which they are the author is currently realized through an approach to intellectual property law that may deprive others of opportunities to paricipate in cultural life. There are reasonable questions to ask about whether and when the “privatization” of content deprives individuals of opportunities to take part in cultural life, and what appropriate exceptions and limitations may be needed to support new creativity, increase access to education, and preserve space for less-commercial cultural pursuits. Alternative approaches that protect copyright but also expand cultural participation may be beneficial, such as the use of open licensing (e.g., Creative Commons) that makes it possible for authors or other rights holders to waive many of the exclusive rights they hold and enable others to use the work more freely.
On the second issue, it is important to recognize that, while related, “protection of authorship” and “copyright protection” are not the same. Copyright restricts the ability of third parties to use copyrighted works without securing permission from the copyright holder; however, because a copyright may be bought and sold, the copyright holder may be different than the original author and may protect subsequent holders of copyright rather than the moral or material interests of original authors. Indeed, their interests may even be in conflict, and there are many scenarios where power asymmetries between individual authors on the one hand and large companies on the other hand result in authors selling their rights too cheaply and without the same quality of legal advice or expertise that companies have. Copyright enables companies to finance cultural productions, free artists from the burdens of commercializing their work, and deliver cultural work to consumers; however, as buyers and sellers of copyright, companies play an essential role in how the moral and material interests of authors are protected in practice, and it is important that this is undertaken consistent with human rights, not just intellectual property law.
Finally, copyright has an additional nuance for the rights of Indigenous peoples to self-determination and to maintain and develop their own culture. Because copyright regimes typically place a limit on the lifetime of copyright, many products of traditional Indigenous culture may be technically considered “public domain” and available for use. Recognizing this challenge, the UN Declaration on the Rights of Indigenous Peoples assures Indigenous peoples the right to maintain, control, protect, and develop their intellectual property over their cultural heritage, traditional knowledge, and traditional cultural expressions. This recognizes that Indigenous peoples’ ownership and custody of their heritage must continue to be collective, permanent, and inalienable; that the free and informed consent of the traditional owners be a precondition of any agreements for the recording, study, use, or display of Indigenous peoples’ heritage; and that concerned peoples should be the primary beneficiaries of commercial application of their heritage. It is important that companies respect these cultural rights.
Generative AI
The growth of generative AI has raised several questions about cultural rights, especially as it relates to the use of existing works to train generative AI models in the creation of new written, audio, visual, or video-based content. Specifically, the debate about whether using copyrighted works to train AI qualifies as fair use represents a new manifestation of the copyright discussion covered above. The growing importance of generative AI brings to the fore the notion that “publicly available” (i.e., content that generative AI companies can easily access) and “public domain” (i.e., content that generative AI companies have the legal rights to use) are not the same thing, and it will be important to watch how legal cases unfold. A legal analysis is beyond the scope of this article, but a human rights-respecting approach to generative AI should encompass companies being thoughtful about how they can help society share in the benefits of scientific advancement in the realm of generative AI while also respecting the moral and material interests of creators.
Travel and tourism
While most of this article has focused on the technology, media, and entertainment industries, there are also connections between the travel and tourism industries and cultural rights. Travel plays a significant role in fulfilling cultural rights by enabling people to experience different cultures, broaden perspectives, and participate in cultural exchange. The recent democratization of travel (such as airlines lowering prices and technology platforms increasing access) has enhanced opportunities to participate in cultural life and gradually eroded the conditions whereby only wealthy people have the means to access diverse cultural experiences. This is to be celebrated.
However, the travel and tourism industries clearly bring risks to cultural rights too, such as cultural appropriation, the commodification of culture, displacement of local communities, and risks to the preservation of cultural heritage. Companies participate in all stages of the travel and tourism value chain—hotel operators, tour companies, cruise lines, airlines, fare aggregators, to name a few—and it will be important to further identify roles and responsibilities across the industry in relation to cultural rights. This is a place where governments have a very important role to play (such as in maintaining, developing, and controlling access to heritage sites), where meaningful stakeholder engagement and community participation are essential, and where appropriate action by companies may vary significantly from place to place.
Sponsorship
Companies often sponsor spaces in which culture and artistic expression have a platform, including museums, film festivals, and galleries. This funding can play an essential role in supporting the livelihoods of artists, extending the reach of creators, and helping fulfill the right of everyone to participate in cultural life. However, corporate involvement in the artistic and cultural process raises questions about the future of more provocative, controversial, and less mainstream art. This suggests a need for a diverse mix of public and private sponsorship of art, but also a role for companies to consider their role and any actions that may—intentionally or otherwise—constrain artistic freedom.
Conclusion
Cultural rights have been substantially clarified during the past few decades, enabling the international community to understand better the wide breadth of human rights risks and opportunities related to cultural rights and diversity. However, as I hope this article demonstrates, further exploration of cultural rights, and the appropriate actions companies should take to protect, respect, and fulfil cultural rights, is needed in the realm of business and human rights.
Further, the need for more clarity about the role of business in cultural rights is one example of a broader theme in the business and human rights field where more analysis would be beneficial. Specifically, while the UN Guiding Principles on Business and Human Rights (UNGPs) provide substantial guidance on the role of companies in avoiding, preventing, and mitigating adverse human rights impacts, they are silent on the proactive actions companies can take to support the realization, enjoyment, and fulfillment of human rights. The field of cultural rights is one where some of the most impactful actions companies can take are positive, such as increasing access, participation, and equity; the same can be said for fields such as health, financial services, and technology. As the business and human rights profession continues to evolve and build upon its previous thinking, a more explicit agenda for the role of companies supporting the realization, enjoyment, and fulfillment of human rights would be beneficial.
[1] The UN Guiding Principles on Business and Human Rights (UNGPs) emphasize the “corporate responsibility to respect” human rights. However, companies may also play a role in protecting and fulfilling human rights, and this article takes this broader view as its scope.
[2] This article focusses on cultural rights and does not cover all the human rights impacts associated with the media and entertainment industry. For excellent coverage of the upstream human rights impacts associated with the media and entertainment industry, see the TV Industry Human Rights Forum.