Reforming Copyright or Toward Another Science? A More Human Rights-Oriented Approach Under the REBSPA in Constructing a Right to Research for Scholarly Publishing

This article identifies copyright impediments existing in the sphere of science, to then make (tentative) suggestions as to how these may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, specifically asking whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. A substantial part of the discussion examines whether and, if so, in what ways, the REBSPA gives rise to a “right to research,” also in an extraterritorial sense that would require the right to be respected beyond borders, and what the normative implications of such a right would be for copyright and science. It is submitted that current interpretations of the REBSPA reveal flaws and gaps. The REBSPA is accordingly reinterpreted in accordance with what is called a more human rights-oriented approach here, its guiding concept being that of “adequacy for science.” The article finds that, while existing copyright law needs certain reforms in the interim to accommodate the needs of science, in the longer term, entire institutionalized science may have to be reconceived. Genuinely open science and the creation of a “true” scholarly knowledge commons require far-reaching changes in the way copyright applies in the sphere of science. The continued role of commercial scholarly publishing needs to be questioned. Potentially, it will be necessary to “move beyond” the applicability of copyright in the field of science

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’ 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

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: a report on the legal protection of academic freedom in Europe

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’ 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’s 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

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

A Review of Academic Freedom in African Universities through the Prism of the 1997/ILO/UNESCO Recommendation

In Europe, Australia, and the United States, the ILO/UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel has been honored more in the breach than in its observance. Now that Africa has returned to an ethos of democratic culture and refinement of the role of the university in the globalization era, the time has come for it also to be assessed on its level of compliance with the ILO/UNESCO Recommendation. This essay takes up that assessment based on four indicators identified in the ILO/UNESCO Recommendation: institutional autonomy, individual rights and freedoms, institutional self-governance, and tenure. The article concludes that academic freedom has found its way back into African universities after its almost complete annihilation between independence and the collapse of the Berlin Wall. However, reforms undertaken in the globalization era in many African universities have undermined gains made in respect to academic freedom during that time

Academic freedom and its protection in the law of European states: measuring an international human right

Focusing on those countries that are members of the European Union, it may be noted that these countries are bound under international human rights agreements, such as the International Covenants on Civil and Political, and Economic, Social and Cultural Rights or the European Convention on Human Rights, to safeguard academic freedom under provisions providing for the right to freedom of expression, the right to education, and respect for ‘the freedom indispensable for scientific research.’ UNESCO’s Recommendation concerning the Status of Higher-Education Teaching Personnel, a ‘soft-law’ document of 1997, concretises international human rights requirements to be complied with to make the protection of the right to academic freedom effective. Relying on a set of human rights indicators, the present article assesses the extent to which the constitutions, laws on higher education, and other relevant legislation of eu states implement the Recommendation’s criteria. The situation of academic freedom in practice will not be assessed here. The results for the various countries have been quantified and countries ranked in accordance with ‘their performance.’ The assessment demonstrates that, overall, the state of the protection of the right to academic freedom in the law of European states is one of ‘ill-health.’ Institutional autonomy is being misconstrued as exhausting the concept of academic freedom, self-governance in higher education institutions sacrificed for ‘executive-style’ management, and employment security abrogated to cater for ‘changing employment needs’ in higher educatio

Third Joint Academic Opinion on the South African Copyright Amendment Bill [B13D-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. A coalition of copyright, human rights, and constitutional law experts have been engaging in the ongoing national and provincial public participation processes. This working paper chronicles the law reform process until April 2023, covering related constitutional court litigation, and then goes on to set out the submissions made on behalf of the group of experts. The process offers insights into the different but crucial roles played by the legislature and the judiciary in aligning copyright with the constitution. It also provides valuable comparative lessons for other jurisdictions seeking to reform their copyright laws