UN report on the right to artistic expression and creation

29 April 2013


The 25-page report is now available in all UN languages.

“This is the first time such a comprehensive study is carried out. Unfortunately artists all over the world are trapped between political, religious, cultural and economic interests,” said Programme Manager Ole Reitov, who has worked as a consultant to the UN office during the preparation of the report.

“It is not exactly an optimistic report. Too many artists have been killed, attacked or imprisoned in recent years. Censorship legislations in many countries are neither respecting international conventions nor providing any options for artists and cultural producers to appeal.”

The UN Special Rapporteur Ms Farida Shaheed will present the report to the UN Human Rights Council on 31 May or 4 June 2013.

Freemuse will participate in the meeting and has even been invited to take part in a side session on 4 June 2013 in the UN building in Geneva with artists talking about artistic freedom.

Key questions for democracy
“The issue of artistic freedom is crucial to any nation. It is not ‘just’ about the artists’ rights to express themselves freely, it is also a question of the rights of citizens to access artistic expressions and take part in cultural life — and thus one of the key issues for democracy,” said Mr Ole Reitov:

“The protection of artistic expression is just as important for the development of democracy as the protection of media workers. It is frequently artists who — through music, visual arts or films — put the ‘needle in the eye’ and strike a chord with millions of people, some of them unable to read and with no access to express themselves.”

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Conclusion and recommendations of the report

85. All persons enjoy the right to freedom of artistic expression and creativity, which includes the right to freely experience and contribute to artistic expressions and creations, through individual or joint practice, to have access to and enjoy the arts, and to disseminate their expressions and creations. (See submission from the Observatoire de la diversité et des droits culturels.)

86. The effects of art censorship or unjustified restrictions of the right to freedom of artistic expression and creativity are devastating. They generate important cultural, social and economic losses, deprive artists of their means of expression and livelihood, create an unsafe environment for all those engaged in the arts and their audiences, sterilize debates on human, social and political issues, hamper the functioning of democracy and most often also impede debates on the legitimacy of censorship itself.

87. In many cases, censorship is counterproductive in that it gives wider publicity to controversial artworks (by pepa). However, the fear censorship generates in artists and art institutions often leads to self-censorship, which stifles art expression and impoverishes the public sphere. (Svetlana Mintcheva, “Symbols into soldiers…”, p. 2.) Artistic creativity demands an environment free from fear and insecurity.

88. The Special Rapporteur calls upon States to review critically their legislation and practices imposing restrictions on the right to freedom of artistic expression and creativity, taking into consideration relevant international human rights law provisions and in cooperation with representatives of independent associations of artists and human rights organizations. The full array of States obligations to respect, protect and fulfil the right of every person to freedom of artistic expression and creativity should be considered for this exercise.

89. The Special Rapporteur recommends that:
(a) Artists and all those engaged in artistic activities should only be subject to general laws that apply to all people. Such laws shall be formulated with sufficient precision and in accordance with international human rights standards. They shall be made easily accessible to the public, and implemented with transparency, consistency and in a non-discriminatory manner. Decisions on restrictions should clearly indicate motives and be subject to appeal before a court of law;

(b) States should abolish prior-censorship bodies or systems where they exist and use subsequent imposition of liability only when necessary under article 19 (3) and 20 of ICCPR. Such liability should be imposed exclusively by a court of law. Prior censorship should be a highly exceptional measure, undertaken only to prevent the imminent threat of grave irreparable harm to human life or property. Avenues for the appeal before an independent entity of any decision to exercise prior restraint should be guaranteed;

(c) Classification bodies or procedures may be resorted to for the sole purpose of informing parents and regulating unsupervised access by children to particular content, and only in the areas of artistic creation where this is strictly necessary due in particular to easy access by children. States shall ensure that (a) classification bodies are independent; (b) their membership includes representatives of the arts field; (c) their terms of reference, rules of procedure and activities are made public; and (d) effective appeal mechanisms are established. Particular attention should be paid to ensuring that the regulation of access by children does not result in prohibiting or disproportionately restricting access for adults;

(d) Decision makers, including judges, when resorting to possible limitations to artistic freedoms, should take into consideration the nature of artistic creativity (as opposed to its value or merit), as well as the right of artists to dissent, to use political, religious and economic symbols as a counter-discourse to dominant powers, and to express their own belief and world vision. The use of the imaginary and fiction must be understood and respected as a crucial element of the freedom indispensable for creative activities;

(e) States should abide by their obligation to protect artists and all persons participating in artistic activities or dissemination of artistic expressions and creations from violence by third parties. States should de-escalate tensions when these arise, maintain the rule of law and protect artistic freedoms. The police should not charge artists and cultural institutions for the costs of their protection;

(f) States should address issues regarding the use of public space for artistic performances or displays. Regulation of public art may be acceptable where it conflicts with other public uses of the space, but such regulation should not discriminate arbitrarily against specific artists or content. Cultural events deserve the same level of protection as political protests. States, private institutions and donors are encouraged to find creative solutions so as to enable artists to display or perform in public space, through, for example, offering open spaces to artists. Where relevant, in particular for permanent visual artworks, States should facilitate dialogue and understanding with the local communities;

(g) States should review their visa issuance system and adjust it to the specific difficulties encountered by touring artists, their host organizations and tour organizers;

(h) States should ensure the participation of representatives of independent associations of artists in decision-making related to art, and refrain from nominating or appointing cultural administrators or directors of cultural institutions on the basis of their political, religious or corporate affiliation.

90. The Special Rapporteur recommends that States and other stakeholders assess and address more comprehensively restrictions to artistic freedoms imposed by corporations, as well as the impact on artistic freedoms of aggressive market strategies and situations of monopolies or quasi-monopolies in the area of media and culture. The support provided to cultural industries should be revisited from the perspective of the right to artistic freedom. The Special Rapporteur recommends in particular that States:

(a) Enact and/or implement anti-trust legislation and legislation against monopolies in the area of media and culture;

(b) Support securing the survival of independent bookstores, music stores and cinemas threatened by megastores, multiplexes and global distributors;

(c) Ensure that measures established to support private sponsorship of the arts do not negatively impact on artistic freedoms;

(d) Establish a clear national legal framework prohibiting coercive contracts under which creators sign away their rights to their creation;

(e) Support the establishment of non-profit collective societies mandated to collect and distribute income from artistic creations and performances, with a majority of artists sitting on their board;

(f) Encourage initiatives to support free legal representation for artists or other forms of legal aid;

(g) Assess and address comprehensively the impact of current intellectual property rights regimes, especially of copyrights and authors’ rights, on artistic freedoms;

(h) Fully support artistic creativity and the establishment of cultural institutions accessible to all. Public agencies should function as a financial backup for programmes that do not attract corporate sponsors, based on the understanding that they cannot interfere with contents. Various systems of State support can be envisaged, including delegating decisions on funding to independent peer-review bodies, which should act in conformity with transparent terms of reference and rules of procedure. These bodies’ decisions should be motivated and subject to appeal;

(i) Fully implement the UNESCO Recommendation Concerning the Status of the Artist;

(j) Develop and enhance arts education in schools and communities, instilling respect for, appreciation and understanding of artistic creativity, including evolving concepts of acceptability, awakening the ability to be artistically creative. Arts education should give students a historical perspective of the constant evolution of mentalities on what is acceptable and what is controversial.

91. The Special Rapporteur recommends that national human rights institutions and non-governmental organizations:

(a) Document more systematically violations of the right to freedom of artistic expression and creativity;

(b) Submit their findings to relevant national and international bodies, in particular the Committee on Economic, Social and Cultural Rights and the Human Rights Committee;

(c) Support artists who are threatened through in particular legal support.

» Read the full report here (PDF)

First world conference and global network
Freemuse’s Programme Manager has been attached as a consultant for the world organisation’s upcoming study and report on conditions and right to artistic freedom of expression. The core work of Freemuse continues to focus on the defence of musicians’ rights to free expression, but Freemuse has in the past two years, though networking and experience, collected a vast knowledge of repression of other artistic expressions as well.

In October 2012, Freemuse initiated and co-organised the world conference ‘All that is Banned is Desired’ which gave voice to artists from all fields, who have experienced censorship, persecution, imprisonment, threats and even abduction.

This website, which was created for the world conference is already very substantial and includes highly informative feature articles and reports on violations of artistic freedom. At this point and time more than 300 articles. Furthermore, in the past year Freemuse has played an essential role in creating a new global network of organisations defending artistic freedom – artsfex.

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