Legal frameworks to protect and promote artistic freedom reflect the conviction that "[c]ulture constitutes one process of, and space for, democratic debate. The freedom of artistic expression forms its backbone. There is compelling evidence that participation in culture also promotes democratic participation as well as empowerment and well-being of our citizens." Farida Shaheed wrote: "Artists may entertain people, but they also contribute to social debates, sometimes bringing counter-discourses and potential counterweights to existing power centres." Moreover, she emphasized that "the vitality of artistic creativity is necessary for the development of vibrant cultures and the functioning of democratic societies. Artistic expressions and creations are an integral part of cultural life,which entails contesting meanings and revisiting culturally inherited ideas and concepts." This is why "artists are sometimes responsible for radical criticism." Based on this development, "[m]ajor sources of international law across the board recognize freedom of artistic creativity explicitly, or implicitly, as an inherent element of the right to freedom of expression. In these instruments, the individual right to express ideas creatively is often irrevocably linked with the right to receive them." The growing importance of artistic freedom as a specific right is reflected by the introduction of the role of the UN Special Rapporteur in the field of culture in 2009, and other rapporteurs, notably the Special Rapporteur on freedom of expression.
UN instruments Artistic freedom as a specific right According to Farida Shaheed, the most explicit legal provisions protecting the right to the freedom indispensable for artistic expression and creativity are the following: • Article 13 and 31 of the
Convention on the Rights of the Child; • Article 13 (1) of the
American Convention on Human Rights (ACHR); • Article 14 of the ACHR Protocol in the area of Economic, Social and Cultural Provisions; • Article 42 of the
Arab Charter on Human Rights; • Article 27 (1) of the
Universal Declaration of Human Rights (UDHR): the universal right "to enjoy the arts"; • Article 49 of the Case of
Karataş v.
Turkey by the
European Court of Human Rights (ECtHR) emphasizes that the "[freedom of artistic expression] (...) affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. (...) Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence there is an obligation on the State not to encroach unduly on the author's freedom of expression." Additionally, in 2015, the
Carthage Declaration on the Protection of Artists in Vulnerable Situations was adopted in Tunis.
Artistic freedom as a pillar of the right to freedom of expression The following legal instruments do not specifically mention artistic freedom but rather understand it as a pillar of freedom of expression in general related to
freedom of thought, conscience and religion. They aim to guarantee the right to
freedom of expression or the right to participate in cultural life without specific reference to the arts.
2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions The
2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions acknowledges that "the diversity of cultural expressions can only be promoted if human rights and fundamental freedoms are guaranteed." A guiding principle of the 2005 Convention is that "cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed."
Canada In Canada, the
Canadian Charter of Rights and Freedoms protects artistic expression.
France In July 2016,
France amended its
legislation in order to extend it with the legal protection of artistic freedom,
architecture and
heritage. For the first time in international law, artistic expressions are established as public goods and the "dissemination of artistic creation is free". This implies not only that artists are free to create but also that the wider
public has access to it. As a result, art and artistic expressions cannot be censored or simply excluded from exhibits and other events.
Germany Article 5 of the
German Basic Law contains a special paragraph that connects the right to freedom of expression with the right to freely develop the arts and sciences." When 2017, Indonesia published Cultural Advancement Law based on principles 11 values, including guaranteeing freedom of expression, ensuring the protection of cultural expression, providing cultural facilities and infrastructure, also funding sources for cultural advancement.
Mexico On 19 June 2017,
Mexico published its "Ley General de Cultura y Derechos Culturales" promising strong protection for artistic freedom and artists and cultural professionals, a provision specifically needed given the alarming conditions under which Mexican artists, journalists and cultural professionals currently work.
Sweden Article 1 (2) of the
Swedish Fundamental Law explicitly includes the freedom of artistic creation as part of the key purposes of freedom of expression: "The purpose of freedom of expression under this Fundamental Law is to secure the free exchange of opinion, free and comprehensive information, and freedom of artistic creation."
Togo On 20 June 2016,
Togo adopted its "Statut de l'artiste". Its major objective is to acknowledge artists as individuals and their moral role in society, their contributions towards the intellectual sphere protected by copyright. It defines the rights and duties linked to artistic professions and aims to promote creativity and to protect artists socially.
Tunisia Adopted in 2014, article 42 of the
Tunisian Constitution states: "The right to culture is guaranteed. The freedom of creative expression is guaranteed. The State encourages cultural creativity and supports the strengthening of national culture, its diversity and renewal, in promoting the values of tolerance, rejection of violence, openness to different cultures and dialogue between civilizations."
United States In the U.S., the
first amendment protects artistic expression. According to the Court, freedom of artistic creativity is an element of the respect for freedom of self-expression, one of the core values of the
First Amendment. However, the U.S.
Supreme Court has never considered artistic freedom as a distinct category akin to political or commercial speech: "it rather addresses the various forms of art in their relation to the First Amendment on a contextual basis." == Challenges to artistic freedom ==