International copyright and human development: the case for access to knowledge

The international copyright system caters mainly to the interests of copyright owners and grants them exclusive control over the use and communication of literary works, almost to the neglect of the interests of society in access to literary works and the knowledge in those works. The absence of meaningful mechanisms to facilitate access to knowledge through the copyright system has grave implications for human development. The process of human development depends on the availability of opportunities to build and expand certain capabilities that enable people to flourish. Two of the most essential capabilities for human development are education and health. These capabilities are not just basic human development capabilities, they are also building blocks for other capabilities for development. The capability to be educated or knowledgeable and the capability to live a healthy life depend on several enabling conditions, one of which is access to knowledge. People need to have the opportunity to derive benefits from different types of literary expressions in ways sanctioned by law and without infringing on proprietary rights. Educational and learning materials that contribute significantly to quality education at all levels and to lifelong learning are subject to copyright protection, and as such the terms of access to, and use of, these materials are determined by the framework of copyright. Also, materials containing key information and knowledge necessary for promoting individual and collective health are within the scope of copyrightable materials, and the extent to which they may be accessed and distributed are governed by the exercise of copyright. Access to knowledge is thus a key human development issue, and the legal arrangements for access to knowledge within the international copyright system merit closer scrutiny. The central objective of the thesis is to consider how the international copyright system can better support access to knowledge for human development purposes. The thesis adopts the capability approach to development and distributive justice theory as key elements of its theoretical framework. The doctrinal research method has been the primary method used in writing the thesis. In the first part of the thesis the connections between copyright, access to knowledge and human development are established with a focus on education and health. Education and health are presented not just as capabilities for human development, but also as internationally recognised human rights and key global development objectives within the framework of the United Nations’ sustainable development goals. This further accentuates their importance to the flourishing and overall wellbeing of human beings, and supports arguments relating to the need to facilitate access to knowledge through the international copyright system. The second part of the thesis examines the extent to which existing international instruments on copyright protection contain mechanisms or provisions that can facilitate access to knowledge for human development purposes. The findings in this part show that while there are certain mechanisms within international instruments on copyright that can be tailored towards enabling access to knowledge these mechanisms are limited and mostly inadequate to combat the access challenges that affect human development in the areas of education and health. The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled is the notable exception, but it only caters to the access needs of visually impaired and other print-disabled persons. The last part of the thesis proposes ways in which the international copyright system can better support access to knowledge for human development. The main points of the proposals are: (1) the international framework for copyright exceptions and limitations should be redefined and an international instrument should be adopted in this regard; (2) efforts should be made to define clearly, protect and enrich the copyright public domain; (3) the initiatives of open access to research literature, open data and open educational resources should be supported through legal rules and policies, including granting research authors the right to a secondary publication of the accepted peer-reviewed manuscript of their research articles; and (4) the World Intellectual Property Organization should take steps towards repositioning the international copyright system to cater to access to knowledge for human development purposes. The thesis concludes that the international copyright system can and should better support access to knowledge, especially considering that key capabilities for human development (education and health) are at stake. This research thesis is the first known study to frame and synthesise different issues relating to the copyright and access to knowledge debate within the context of international law and from a human development and capabilities perspective. The thesis therefore makes a significant original contribution to the literature. The research expands the traditionally limited ambit of copyright theory by adopting distributive justice and capabilities approaches as the underlying framework of analysis, and by showing how these approaches can contribute to the advancement of pro-access considerations and reforms within the international copyright system. The thesis also contributes to practice by making multiple recommendations for legal and institutional reforms that are informed by the unique perspectives and theoretical approaches employed in the research.