1. The right of access to educational materials and copyright : international and domestic law
- Author
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Samtani, Sanya, O'Regan, Catherine Mary Elizabeth, and Gangjee, Dev Saif
- Subjects
International law ,Constitutional law--India ,Intellectual property (International law) ,Access to knowledge movement ,Copyright ,Comparative law ,International law and human rights ,Constitutional law--South Africa ,Constitutional law ,Right to education ,Human rights ,Education ,International trade ,Fair use (Copyright) - Abstract
International rules regulating copyright pose obstacles to accessing educational materials, particularly impacting persons living in poverty, persons living with disabilities and other marginalised groups. This Thesis argues that access to educational materials is a human right under the right to education and imposes obligations upon states. State obligations under human rights law thus appear to conflict with international copyright obligations for common parties. In demonstrating that states can reconcile these competing obligations harmoniously, the Thesis advances a rights-based response to the problem of access for those neglected by the market. This Thesis is divided into two Parts. Part I locates access to educational materials as a human right and gives content to states parties' obligations. It identifies and analyses educational 'exceptions' to copyright in the relevant copyright treaties. It argues that these 'exceptions' coincide with states parties' human rights obligations to facilitate access. States parties can thus concurrently fulfil both sets of obligations to respond to the problem of access for the most marginalised. However, after analysing the relative institutional design of the international trade system and human rights treaty bodies, Part I concludes that trade-based obligations are likely to be prioritised over human rights obligations. This prioritisation negatively impacts access to educational materials in countries that cannot afford to pay for free access for all. Part II investigates the manner in which two countries in the global South have sought to reconcile these obligations. South Africa's draft copyright legislation seeks to do this but the President has declined to assent to it due to concerns emanating from the international trade system and related actors. This illustrates the conclusions at the end of Part I. In contrast, a recent Indian court decision demonstrates the possibility of adopting a harmonious interpretation that facilitates equitable access for the most marginalised. The Thesis thus emphasises the crucial role of domestic constitutional actors in harmonising competing international obligations.
- Published
- 2021