Reshaping The International Copyright System To Facilitate Education In Developing Countries

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International copyright flexibilities are ill-suited to the need of developing countries to create effective access to printed materials in schools, a new book argues. The author, whose work was presented last week at the World Intellectual Property Organization, urges a normative and institutional rethinking of the current system.

The book, “International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi Legal Solutions,” was authored by Susan Isiko Štrba, senior IP and development research affiliate at the University of Minnesota. It was presented alongside a meeting of the World Intellectual Property Organization copyright committee last week. The event was sponsored by the International Centre for Trade and Sustainable Development (ICTSD), and the book is available here.

The author demonstrates the difficulties in applying the so-called three-step test in copyright, which allows for specific uses of the protected works without the permission of the right holder. For instance, under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the exception is narrow both in the qualitative and quantitative sense, allowing only a limited reproduction of the protected works.

As reminded by Guidibende Raghavender, registrar of copyrights in India and panellist at the launch of the book, countries like India suffer from a lack of resources and libraries are underequipped, so if the exception is overly limitative it does not match the need for broad dissemination of the knowledge.

The 1971 Appendix to the Berne Convention sets up a mechanism specifically designed for developing countries’ access to education, but the procedural requirements of the Appendix are overly stringent, and more problematically, the procedure is extremely long. According to Article III (3) (i) of the Berne Appendix, an application for a reproduction licence of a work in natural and physical sciences can only be made three years after the first publication of the work. This diminishes the incentive to have recourse to the mechanism. After three years – in areas where schooling programmes are constantly evolving – the books might be outdated. The situation for the reproduction of other books is even worse, with a waiting period of five years.

The flaws of the current flexibilities are the expression of the imbalance between the private interest of the copyright holder and the broader social interest of the public. The book advocates for an institutional reform and a normative re-ordering within the IP system so as to better take into account the needs and special socio-economic circumstances of the global South.

For the author, a better balance must be sought internationally. She places a lot of hope in what can be accomplished through the WIPO Development Agenda and the Standing Committee on Copyright and Related Rights (SCCR). For her, these tools could lead in the long run to the establishment of a soft law instrument or institutional reform putting the copyright regime more on track with educational needs.

The author’s analysis might rely too much on the nature of current international IP legal instruments and institutions to the detriment of an exploration of solutions at the domestic level. As stressed by some participants during the presentation, the problem of access to printed materials in schools is also the responsibility of governments that often misallocate their resources and priorities other domains than education.

Participants said the book fills an academic gap and targets an important theme for the development of the South. Raghavender emphasised that education is a vital factor for the socio-economic development of countries. The creation of a knowledge economy is a key tool for reaching the educational UN Millennium Development Goals.

Tiphaine Nunzia Caulier recently graduated with a Master in International Law from the Graduate Institute in Geneva and UCLA School of Law. Through her work experiences and academic interests she has specialized in international trade, intellectual property, and public health.

Tiphaine Nunzia Caulier may be reached at info@ip-watch.ch.

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