Papers by Klaus Dieter Beiter
Brooklyn Journal of International Law, 2022
This article identifies copyright impediments existing in the sphere of science, and then tentati... more This article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks 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 a sense that legally obliges the international community of states toward states with fragile science systems, or in an extraterritorial sense that would require the right to be obeyed beyond borders—and it then enquires what the normative implications of such a right would be for copyright and science. It is submitted that current official interpretations of the REBSPA reveal flaws and gaps. Here, the REBSPA is accordingly reinterpreted in accordance with what is called a more human rights-oriented approach, its guiding concept being that of “adequacy for science.” This 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 that 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.
International Journal for Education Law and Policy (IJELP), 2021
This article is an earlier version of Beiter, K. D. (2023). Why neoliberal ideology, privatisatio... more This article is an earlier version of Beiter, K. D. (2023). Why neoliberal ideology, privatisation, and other challenges make a reframing of the right to education in international law necessary. The International Journal of Human Rights, 27(3), 425–470. https://doi.org/10.1080/13642987.2022.2131773. The article in the International Journal of Human Rights mentions five global challenges for the right to education, but focuses on one of these: privatisation. The article in IJELP does not focus on any of the challenges, but mentions and briefly discusses all five global challenges. ––––– Abstract: Changed circumstances since the adoption of the primary international human rights treaties and distinct new challenges require a ‘reframing’, a reconfiguration, of the right to education. Challenges which have led to a global crisis in education include privatisation (commercialisation, digitisation, etc.); in times of globalisation, the ignored extraterritoriality of states’ international human rights obligations; a(n) (ostensible) lack of resources; inequality and exclusion; and unsustainable development. All of these ‘phenomena’ seem to have their ultimate basis in neoliberal ideology. This article proposes that, rather than creating new or amending existing international hard law, a ‘softer law’ type of document – a (revised) General Comment by the U.N. Committee on Economic, Social and Cultural Rights or an international expert document – should consolidate and further develop current international law on the right to education. Such a ‘rephrasing’ must be seen as an act of rescuing the right to education as a global ethical standard in the field of education based on human dignity. The article concludes by making brief, but concrete suggestions for a first ‘scholarly’ or doctrinal phase in which proposals for a reformulation are developed.
European Yearbook on Human Rights: 2023, 2023
The state of health of academic freedom in Europe is only deceptively good essentially because ‘t... more The state of health of academic freedom in Europe is only deceptively good essentially because ‘the law and human rights’, and most ways of assessing compliance with academic freedom, do not properly cater for, or at any rate struggle to capture, ‘commercial infringements’ – what are termed, in this contribution, academic freedom violations of the ‘second generation’ (violations 2.0). This contribution seeks to explain how commercialisation affects academic freedom, and why academic freedom violations 2.0 have largely remained below the radar in Europe (and elsewhere) so far. Neither the European Convention on Human Rights nor the Revised European Social Charter expressly protects academic freedom. However, existing provisions in both instruments could be relied on to accord adequate protection to academic freedom. Nevertheless, as will be shown, there are also many obstacles to this endeavour. The best solution may, therefore, be for the Council of Europe to adopt a specific European Convention on Academic Freedom. The contribution concludes with ten essential principles relating to the content of such an instrument.
Zeitschrift für Menschenrechte / Journal for Human Rights, 2023
This article is based on Beiter, Klaus D. (2023): “The Emperor Is Naked!” – Rebuilding Moral Univ... more This article is based on Beiter, Klaus D. (2023): “The Emperor Is Naked!” – Rebuilding Moral Universities in the Light of the Rights to Education and Science of International Law, Inaugural Lecture, North-West University, Potchefstroom, South Africa, 8 June 2023, https://www.youtube.com/watch?v=mSR8j2hl4Xg.
Universities have left the path of virtue. Scientific or academic freedom, rooted in human rights to education and science, has come under pressure in many countries, including many democracies. This is significantly a consequence of the pursuit of neoliberal higher education and research policies. This article juxtaposes these two approaches, seeking to explain the differences between the neoliberal approach and the human rights approach to universities. It is argued that rebuilding "moral" – which essentially means free – universities needs to proceed on the basis of the rights to education and science of international law, moreover, in a way that fully appreciates and reflects the significance of these rights for universities.
![Research paper thumbnail of Copyright Reform in South Africa: Two Joint Academic Opinions on the Copyright Amendment Bill [B13B 2017]](https://attachments.academia-assets.com/94140850/thumbnails/1.jpg)
Potchefstroom Electronic Law Journal
South Africa is in the process of reforming its copyright law, attempting to update and align it ... more 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 realis...
The International Journal of Human Rights, 2022
Changed circumstances since the adoption of the primary international human rights treaties, a mu... more Changed circumstances since the adoption of the primary international human rights treaties, a multitude of scattered education rights norms, and distinct new challenges require a ‘reframing’ of the right to education in international law. Challenges which have led to a global crisis in education include privatisation; the ignored extraterritoriality of states’ international human rights obligations; poverty and a(n) (ostensible) lack of resources; non-acceptance of ‘otherness’, inequality, and exclusion; and unsustainable development. All these ‘phenomena’ have their ultimate basis in neoliberal ideology. Critiquing neoliberalism, this article proposes that, while in some instances it may be necessary to create new or amend existing international hard law, generally a ‘softer law’ type of document – a (revised) General Comment by, for example, the U.N. Committee on Economic, Social and Cultural Rights or an international expert document – should consolidate and further develop international law on the right to education. While the analysis draws the contours of an overall reform agenda, a special focus will be on the issue of privatisation, demonstrating that even the recent adoption of the expert Abidjan Principles cannot be seen as having completed (part of) the codification process.
Policy Brief – South Centre, 2021
Competition law provisions relating to intellectual property (IP) rights should play an enhanced ... more Competition law provisions relating to intellectual property (IP) rights should play an enhanced role in facilitating the domestic and international transfer and dissemination of technology. IP-related competition rules in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) create an obligation for Member States to apply competition law in the IP context. TRIPS competition rules should be read in a "prodevelopment" fashion – IP rights need to be read reductively, IP-related competition law expansively. Ten considerations for a "prodevelopment" IP-related competition law are formulated.
GRUR International, 2021
Article 8 of the Berne Convention for the Protection of Literary and Artistic Works on the transl... more Article 8 of the Berne Convention for the Protection of Literary and Artistic Works on the translation rights of authors and the dysfunctional Appendix to the Convention, envisaging compulsory licences for the translation of (whole) works, could be held to facilitate linguistic genocide, the social destruction of cultural groups through the denial of linguistic human rights. This occurs through forms of "subtractive education" (educational materials in relevant languages lacking), but also withholding any other reading materials for cultural literacy purposes. Genocide violates ius cogens. Article 8 of Berne and the Berne Appendix could thus be held to be void in their applicability to marginalised linguistic groups. This opens up the potential to newly regulate the field of translations rights, and exceptions and limitations thereto, at the international level in as far as "neglected" languages are concerned.
Law and Development Review, 14(1), 215-272, 2021
Increasingly, the economy of industrialised countries moves away from being based on a multiplici... more Increasingly, the economy of industrialised countries moves away from being based on a multiplicity of independent innovators to one characterised by cross-licensing and the pooling of intellectual property (IP) rights. Competition law is accorded a more limited role. Refusals to license or restrictive licence terms are tolerated. This paradigm emphasises the innovation at the expense of the dissemination rationale of IP and competition law. The pressure on developing countries is to follow suit. However, this approach jeopardises overcoming the technology dependence of these states. Yet, the political consensus underlying the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was that, in exchange for IP rights protection, a transfer and dissemination of technology benefiting the global South would occur. This has not taken place so far. Taking this promise seriously requires according an enhanced, more social role to competition law. Articles 8(2), 31 and 40 of TRIPS – the TRIPS competition rules – could be interpreted in a way to accomplish this. This article argues in favour of a “prodevelopment” approach to IP-related competition law. This could be viewed as a demand of the rule of law at the international level. On the one hand, treaties such as TRIPS are to be interpreted in good faith. On the other, public interest and human rights considerations justify, as it were, require, such an approach. Articles 7 and 8 of TRIPS can play a crucial role in this regard. They reflect such public interest considerations as “object and purpose” of TRIPS. They also provide a link to international human rights law (IHRL). IHRL protects a (group) right to development, confirming “policy space” for World Trade Organization (WTO) members and the freedom to opt for a competition law model that facilitates dissemination. The International Covenant on Economic, Social and Cultural Rights (ICESCR) further protects various economic, social and cultural rights, including the right to enjoy the benefits of scientific progress and its applications (REBSPA). These rights may be said to give rise to “transfer and dissemination of technology” as a human right. Duties under the right to development and “territorial” and “extraterritorial” human rights obligations (ETOs) under the ICESCR support an understanding of competition law which is pro development, which takes account of local access and welfare needs. The article concludes with a set of 10 consolidated considerations for a “prodevelopment” IP-related competition law.
Buffalo Human Rights Law Review, 26, 1-79, 2020
This is a long version of: Beiter, K.D. (2020) Extraterritorial Human Rights Obligations to “Civi... more This is a long version of: Beiter, K.D. (2020) Extraterritorial Human Rights Obligations to “Civilize” Intellectual Property Law: Access to Textbooks in Africa, Copyright, and the Right to Education. Journal of World Intellectual Property, 23(3&4), 232-266.
The article inter alia adds more information on the 20 ETOs identified and includes a discussion in the final section on “ETOs as constitutionalization ‘from below’ in IP law,” exploring the relationship between ETOs as part of international human rights law and international IP law, touching on issues of hierarchy and conflict resolution.
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.
Journal of World Intellectual Property, 23(3)&(4), 232-266, 2020
Printed textbooks remain crucial for education, particularly in developing countries. However, in... more 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 local languages. 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 elements of the right to education under international human rights law (IHRL). Extraterritorial state obligations (ETOs) under IHRL – obligations of states, in appropriate circumstances, to observe the human rights of those beyond their borders – could assume a key function in “civilizing” intellectual property (IP) law. This Article demonstrates the significance of ETOs for IP law by focusing on the issue of how ETOs under the right to education of IHRL prescribe 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 typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept is introduced and 20 typical ETOs relevant in this context are identified. The discussion relates to the situation in developing countries more generally, focuses, however, on Africa.
Israel Law Review, 52(2), 233-291, 2019
Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights protects t... more Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights protects the right of everyone to enjoy the benefits of scientific progress and its applications (REBSPA). While the interpretation of this provision has not really been a focus of attention in the past, this is changing. A danger lies in construing this provision as entitling states to comprehensively regulate the field of science, at the expense of scientific and academic freedom. Scientific or academic freedom, rather than state regulation, guarantees creativity and innovation in the field of science for the benefit of society at large. This article raises four caveats to guide all those tasked with interpreting Article 15(1)(b) – specifically, the UN Committee on Economic, Social and Cultural Rights, right now preparing a General Comment on Article 15(1)(b). Firstly, it is crucial to have conceptual clarity of, and understand the differences between, the REBSPA, freedom of science, academic freedom, freedom of expression, and the right to education. Secondly, science, by its very nature, is not susceptible to being managed. An ‘adequate’ framework for science should limit state intervention and empower the scientific fraternity. Thirdly, regulation has lately often entailed the adoption of a corporatist approach to science in universities and research institutions. This damages science. Fourthly and finally, UNESCO’s recent Recommendation on Science and Scientific Researchers of 2017 constitutes only an imperfect blueprint to guide interpretation of the REBSPA. It fails to address various threats (impact agenda science, peer review, ethical regulation, entrepreneurialisation, accountability excess, absence of rights of participation in governance, and so on) to scientific and academic freedom. Relying throughout on the notion that a science system must be ‘adequate for science’, the article concludes with a set of 22 recommendations on how the REBSPA should be construed so as to duly respect scientific and academic freedom. The current science regime needs to be fundamentally rethought in the light of such freedom. Otherwise – and many experts concur – we shall soon witness the fatal collapse and disintegration of modern science. Freedom as a pillar of science, and of the REBSPA, is in danger of being lost.
Georgetown Journal of International Law, 49(1), 9-88, 2018
It has recently been suggested that the age of human rights is over. The West, itself often not r... more It has recently been suggested that the age of human rights is over. The West, itself often not respecting human rights, is said to have abused the concept as a tool to retain control over the developing world. Human rights have remained a foreign construct in Africa, the Near East, and Asia. They have "underperformed," and the level of privation in many parts of the world is more intense than ever. This Article acknowledges elements of truth in these observations, but argues that the battle for human rights is not lost. Using the right to education in Africa as an example, three arguments will be presented to explain how human rights can regain their moral cogency and actually help change a world of misery for the better. First, human rights need to be "domesticized," made "home-grown" achievements with which local populations can identify. Regional human rights institutions need to give specificity to universal norms. These "locally-owned" norms must then be effectively enforced. Second, pure "development goal" approaches to reducing global poverty need to be debunked. Instead, a human rights approach needs to identify clear duty-bearers, including notably the World Bank, who, when they have failed to comply with specified duties, should be considered "human rights violators" and held accountable accordingly. Third, and perhaps most importantly, human rights must be recognized to give rise to extraterritorial state obligations. These are obligations of states, in appropriate circumstances, to respect, protect, and fulfill the human rights of those beyond their own territory. The extraterritorial human rights obligations of states must structure bilateral development assistance and cooperation, the lending operations of the International Monetary Fund and the World Bank, and free trade within and beyond the World Trade Organization (here, meaning the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights).
Although the cradle of university education is traced to Africa, modern university education in A... more Although the cradle of university education is traced to Africa, modern university education in Africa emanated from European systems which set the tone for their replication on the continent through colonialism. For ideological and other reasons, African universities were subjected to significant violations of their institutional autonomy after independence, which trickled down to affect academics and students alike and thereby violated academic freedom generally. One major area where the abuses centred was the appointment of political leaders to occupy the high echelons of university management and to run the universities as political organs of the one-party systems in vogue at the time. Discussion of this subject has mainly centred on critiquing the excesses of immediate post-colonial governments, sometimes with no linkage to academic freedom. Where academic freedom is introduced into the discourse, the key components of the concept of academic freedom are not clearly delineated and discussed in a manner that links one component to the other. This paper aims to fill this gap. It does so by developing a theoretical framework for academic freedom which is used to analyse and categorise violations of academic freedom under its five pillars – institutional autonomy, self-governance, tenure, individual rights and freedoms for academics, and individual rights and freedoms for students. The paper also examines the factors responsible for the violations of academic freedom and their impact on the evolution of higher education in Africa.
New Zealand Journal of Research on Europe, 10(1), 1-60, 2016
This article is a condensed and reworked version of: "Measuring" the Erosion of Academic Freedom ... more This article is a condensed and reworked version of: "Measuring" the Erosion of Academic Freedom as an International Human Right: A Report on the Legal Protection of Academic Freedom in Europe (Vanderbilt Journal of Transnational Law, 49(3), 2016, 597-691), making the research results available to an audience versed in the higher education sciences.
The 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 28 Member 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.
International Review of Intellectual Property and Competition Law, 39(6), 714-721, 2008
Intercultural Human Rights Law Review, 11, 107-190, 2016
Academic freedom is generally considered a human right, both nationally and internationally. Howe... more 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.
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Papers by Klaus Dieter Beiter
Universities have left the path of virtue. Scientific or academic freedom, rooted in human rights to education and science, has come under pressure in many countries, including many democracies. This is significantly a consequence of the pursuit of neoliberal higher education and research policies. This article juxtaposes these two approaches, seeking to explain the differences between the neoliberal approach and the human rights approach to universities. It is argued that rebuilding "moral" – which essentially means free – universities needs to proceed on the basis of the rights to education and science of international law, moreover, in a way that fully appreciates and reflects the significance of these rights for universities.
The article inter alia adds more information on the 20 ETOs identified and includes a discussion in the final section on “ETOs as constitutionalization ‘from below’ in IP law,” exploring the relationship between ETOs as part of international human rights law and international IP law, touching on issues of hierarchy and conflict resolution.
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.
The 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 28 Member 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.
Universities have left the path of virtue. Scientific or academic freedom, rooted in human rights to education and science, has come under pressure in many countries, including many democracies. This is significantly a consequence of the pursuit of neoliberal higher education and research policies. This article juxtaposes these two approaches, seeking to explain the differences between the neoliberal approach and the human rights approach to universities. It is argued that rebuilding "moral" – which essentially means free – universities needs to proceed on the basis of the rights to education and science of international law, moreover, in a way that fully appreciates and reflects the significance of these rights for universities.
The article inter alia adds more information on the 20 ETOs identified and includes a discussion in the final section on “ETOs as constitutionalization ‘from below’ in IP law,” exploring the relationship between ETOs as part of international human rights law and international IP law, touching on issues of hierarchy and conflict resolution.
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.
The 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 28 Member 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.
which, in turn, is a short version of: Beiter, K.D. (2020). 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. Buffalo Human Rights Law Review, 26, 1-79.
By way of example, this chapter will demonstrate the significance of extraterritorial state obligations (ETOs) under international human rights law (IHRL) for intellectual property (IP) law by focusing on the issue of how the right to education under international law prescribes requirements that international copyright law must comply with to facilitate access to printed 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 fulfil human rights, the ETOs concept will be introduced and typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified.