Extraterritorial human rights obligations to “civilize” intellectual property law: Access to textbooks in Africa, copyright, and the right to education

• Published date: 01 July 2020
• Date: 01 July 2020
• DOI: http://doi.org/10.1111/jwip.12150
• Author: Klaus D. Beiter

J World Intellect Prop. 2020;23:232–266.232

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wileyonlinelibrary.com/journal/jwip

DOI: 10.1111/jwip.12150

ORIGINAL ARTICLE

Extraterritorial human rights obligations to

“civilize”intellectual property law: Access to

textbooks in Africa, copyright, and the right to

education

Klaus D. Beiter

1,2

1

Faculty of Law, North‐West University,

Potchefstroom, South Africa

2

Max Planck Institute for Innovation and

Competition, Munich, Germany

Correspondence

Klaus D. Beiter, Faculty of Law, North‐West

University, Private Bag X6001, Internal

Box 431, Potchefstroom 2520, South Africa.

Email: Klaus.Beiter@nwu.ac.za

Funding information

National Research Foundation of South Africa,

Grant/Award Number: 111697

Abstract

Printed textbooks remain crucial for education, particu-

larly 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 avail-

ability, accessibility, and acceptability of learning materials

constitute elements of the right to education under in-

ternational human rights law (IHRL). Extraterritorial state

obligations (ETOs) under IHRL—obligations of states, in

appropriatecircumstances, to observe the humanrights 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 interna-

tional copyright law must comply with to facilitate access

to textbooks in schools and universities. Drawing on the

expert Maastricht Principles on Extraterritorial Obliga-

tions of States in theArea of Economic, Social and Cultural

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2020 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd

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 thiscontext are identified. The discussion

relates to the situation in developing countries more

generally, focuses, however, on Africa.

KEYWORDS

access to textbooks, Africa, copyright, developing countries,

extraterritorial state obligations, intellectual property rights,

right to education

1|COPYRIGHT LAW AND ACCESS TO TEXTBOOKS IN DEVELOPING

COUNTRIES

Printed textbooks are crucial for education, particularly in developing countries. Hard‐copy materials remain

important in schools and universities (Isiko Štrba, 2012, p. 202; Ncube, 2017a, p. 129).

1

In developing countries,

information and communication technology often is not available or accessible (Story, 2003, p. 797). Hence, only

one in five people in Sub‐Saharan Africa used the internet in 2017 (Mahler, Montes, & Newhouse, 2019, p. 1).

2

Constraints result from lack of electricity, computer illiteracy, high costs of internet services, and the difficulty of

provision in rural areas (Mahler et al., 2019, p. 4). Other problems of accessibility relate to the fact that, generally,

open access is not a common feature, peer‐to‐peer platforms are not quite legal, access is restricted by techno-

logical protection measures (TPMs) which summarily negate permissible copyright limitations and exclusions, and

the circumvention of TPMs is often a crime. Altogether, therefore, digital content does not prove to be a wondrous

solution, wherefore the textbook remains important. It remains “extremely important”in the countries of the global

South (Story, 2003, p. 797).

However, “textbooksare a rare commodity in mostdeveloping countries. One bookper student (in any subject) is

the exception, not therule, and the rule in most classrooms is,unfortunately, severe scarcity or the total absence of

textbooks”(Askerud, 1997,p.16)

3

Where textbooks are available in developing countries, they are often very

expensive, and, accordingly, unaffordable. A newspaper article of 2014 thus reported for South African university

students the high cost of textbooks meant that many students could not buy all the books they needed for their

studies (Nkosi, 2014). Some textbooks may be available, but not in the relevant local languages in which they are

needed. As for Africa,UNESCO notes for reading booksin children's languages a scarcityin all African languages and

the virtual absenceof books in many key languages (UNESCOGlobal education monitoringreport, 2016,p.190).

4

All

this is problematic, of course, where access to textbooks is held covered by the human right to education.

The lack of access to textbooks in developing countries has many reasons. There is a lack of reliable data on

student enrollments; teaching and learning material systems are poorly managed due to a lack of trained manpower

or good communication facilities; in upper secondary and higher education there is a continued dependence on

expensive imported textbooks; financing is “inadequate, irregular, and unpredictable”; and distribution and school

storage systems are dysfunctional (Read, 2015, p. 13).

5

Moreover, textbook procurement is uncompetitive and

bribery by suppliers not uncommon (International Commission on Financing Global Education Opportunity, 2016,

pp. 66–67). However, copyright must also be considered a reason inhibiting access to textbooks.

6

Where textbooks are unavailable, too expensive, or not available in relevant local languages, their cheap

(translation and) reproduction by governments, educational institutions, or libraries would be a solution.

BEITER

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However, “reprography, which, from a developmental perspective, could facilitate access is often seen from the

perspective of “piracy”and is highly regulated”(Ramcharan, 2013, p. 65). Copyright also affects the price at which

textbooks can be provided (Helfer & Austin, 2011, p. 318). The Agreement on Trade‐Related Aspects of Intellectual

Property Rights (TRIPS) requires World Trade Organization (WTO) members to put in place a system of copyright

protection in accordance with most of the provisions of the Berne Convention for the Protection of Literary and

Artistic Works of 1971.

7

Under the Berne Convention, the reproduction and translation of literary and artistic

works are the exclusive rights of the copyright holder.

8

Anyone else seeking to reproduce or translate such works,

or larger portions thereof, requires the copyright holder's consent. Copyright holders might not be traceable or

refuse consent. Where they grant consent, they usually require the payment of a licensing fee. Especially in the

developmental context, these factors tend to impede access to textbooks. The exact extent of copyright as an

impeding factor in relation to other impeding factors is difficult to assess. Yet, one must agree with Laurence Helfer

and Graeme Austin, where they state that, “even so, analysis …must also take account of situations in which

intellectual property (IP) law may make a real difference to the provision of learning materials, and, in turn, the

realization of the human right to education”(Helfer & Austin, 2011, p. 357).

9

International copyright law does make provision for certain limitations and exceptions to copyright protection

to safeguard the public interest in access to works that enjoy copyright protection, also for educational purposes.

However, as the discussion will show, limitations and exceptions relevant to education hardly countenance the bulk

provision of learning materials, this, as it were, being what is needed in developing countries. Moreover, the

compulsory licensing scheme under the Appendix to the Berne Convention, conceived to serve bulk provision for

educational purposes in developing countries, has proven ineffective in practice.

2|“CIVILIZING”IP LAW THROUGH EXTRATERRITORIAL HUMAN

RIGHTS OBLIGATIONS

More than 20 years ago, Philip Altbach remarked that

the time has come to recognize that the production of books and journals is more than a business, and that

trade in knowledge and knowledge products is somehow different than commerce in automobiles or co-

conuts. Those who control knowledge distribution have a responsibility [emphasis added] to ensure that

knowledge is available throughout the world at a price that can be afforded by the Third World.

(Altbach, 1996, p. 26).

However, whose responsibility is referred to here? Who controls knowledge distribution? Would this be the big

publishing firms operating from countries of the Global North, individual, especially developed states, inter-

governmental organizations such as the WTO or the World Intellectual Property Organization (WIPO) as such,

states as members of such organizations, especially those influential in the formulation of copyright policy by such

organizations—or more or all of these? As has been pointed out, and as will further be explained below, access to

textbooks forms part of the human right to education. However, where, due to strict copyright laws imposed by a

developing state, access to textbooks in that state is obstructed—and the right to education in that state therefore

at peril—it does not really make sense to brand that state a human rights violator where the ultimate reason for the

violation has a different, global, international source. The application of mere territorial human rights paradigms

clearly does not suffice in a globalized world characterized by a harsh North–South divide.

The present context is one where TRIPS norms are increasingly considered minimum standards inviting ex-

pansive interpretations of copyright and other IP rights. Bilateral and plurilateral free trade agreements (FTAs)

oblige developing states to provide for enhanced levels of IP rights protection, extending beyond TRIPS. WIPO

pursues an unabated agenda of “harmonizing”global IP law. Developed states urge those states yet to attain more

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