Not the African Copyright Pirate is Perverse, But the Situation in which (S)He Lives—Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization From Below in IP Law

Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners\u27 native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law. Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state obligations (ETOs) under international human rights law (IHRL), that is, of states, in appropriate circumstances, bearing human rights obligations toward those living beyond their own territory. This reluctance is regrettable if it is borne in mind that most IP, including copyright law originates at the international level, where each state plays a role in designing rules that may affect the lives of those in other countries. ETOs could assume a key function in civilizing -as it were, constitutionalizing -IP law. This Article will demonstrate the significance of ETOs for IP law by focusing on the issue of how the right to education under IHRL prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a constitutionalization of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research

A reply to Keyan Tomaselli’s "The 2022 Copyright Amendment Bill: Implications for the South African universities’ research economy"

Rather than focusing on the intricate detail of the Copyright Amendment Bill (CAB), the purpose of this short reply is to outline the broader context against which copyright reform, as it affects the higher education and scientific spheres, must be understood. This context demonstrates that provisions such as Section 12A (fair use, inter alia for purposes of research and education) or Section 12D (allowing substantial reproduction, sometimes of whole textbooks, for educational purposes) constitute a bare minimum of “what is required,” and also permissible under international copyright law

Retrogression in the legal protection of the right to academic freedom in Europe

This article assesses to what extent the right to academic freedom as construed in terms of international human rights law, specifically UNESCO’s Recommendation on the Status of Higher-Education Teaching Personnel of 1997, is protected in the law of the 28Member States of the European Union. It determines the elements of this right, to then operationalise these by way of indicators accorded numeric values in order to assess state compliance and rank states in terms of their performance. The article shows that there is retrogression in Europe insofar as the legal protection of the right to academic freedom is concerned. Institutional autonomy is being misconstrued, academic self-governance denied and job security eroded. These developments appear to be the result of deliberate policy decisions by EU Member States seeking to make higher education “the arm of national economic policy,” so as to ensure higher education will contribute to national GDP

Measuring the Erosion of Academic Freedom as an International Human Right

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries\u27 constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO\u27s Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but politically binding, and which concretizes international human rights requirements in respect of academic freedom--a right under international human rights law. The results for the various countries have been quantified, and the countries have been ranked in accordance with their performance. Overall, the state of the legal protection of the right to academic freedom in Europe appears to be one of ill-health. Increasingly, European countries are merely paying lip service to this important right. While the concept of institutional autonomy is being misconstrued, self-governance in higher education institutions and employment security are being subjected to rigorous processes of erosion

Not the African Copyright Pirate is Perverse, But the Situation in which (S)He Lives—Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization From Below in IP Law

Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners\u27 native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law. Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state obligations (ETOs) under international human rights law (IHRL), that is, of states, in appropriate circumstances, bearing human rights obligations toward those living beyond their own territory. This reluctance is regrettable if it is borne in mind that most IP, including copyright law originates at the international level, where each state plays a role in designing rules that may affect the lives of those in other countries. ETOs could assume a key function in civilizing -as it were, constitutionalizing -IP law. This Article will demonstrate the significance of ETOs for IP law by focusing on the issue of how the right to education under IHRL prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a constitutionalization of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research

Yearning to Belong: Finding a Home for the Right to Academic Freedom in the U.N. Human Rights Covenants

Academic freedom is generally considered a human right, both nationally and internationally. However, no legally binding international human rights instrument-neither at the global nor the regional level-provides express protection for this right; this includes the two most important global human rights treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 1966. This begs the question: Does the right to academic freedom not-even so--have a home in either or both of the U.N. Human Rights Covenants? Can and should academic freedom be protected as part of the right to freedom of expression in Article 19 of the former Covenant? Or does Article 15 on cultural rights of the latter Covenant constitute the proper provision? Or is it, in fact, Article 13 on the right to education, also of the latter Covenant, that encompasses academic freedom? Yet another option would be for different aspects of the right to academic freedom to be considered addressed by different Covenant provisions, including but not limited to those cited. However, if the latter option applies, does - or should - not one of these provisions be seen to be the primary or overarching provision? This article will attempt to answer these questions, commenting on the adequacy or otherwise of the various approaches discernible. Shedding light on the matter may well facilitate the formulation of a General Comment on the right to academic freedom by the proper U.N. human rights treaty body - and in this way help dispelling some of the fundamental misconceptions regarding the true purport of this right

Copyright Reform in South Africa: Two Joint Academic Opinions on the Copyright Amendment Bill [B13B 2017]

South Africa is in the process of reforming its copyright law, attempting to update and align it with constitutional rights and existing and prospective international treaty obligations. With the adoption of the Copyright Amendment Bill [B13B-2017] by both Houses of Parliament in March 2019, the apartheid-era Copyright Act of 1978 had almost successfully been amended, when the President of the Republic withheld his assent to the Bill referring it back to Parliament citing reservations about its constitutionality. Following calls for public comment by the parliamentary Portfolio Committee on Trade and Industry on the President's reservations, a coalition of copyright and constitutional law experts, convinced of the constitutionality of the Bill, submitted two legal opinions to the Committee. The two opinions presented in this contribution underline the importance of copyright reform, as envisaged in the Bill, to bringing South African copyright law into the digital age and realising several constitutional rights including the rights to education, cultural participation, language, freedom of expression, and access to knowledge of everyone, without discrimination