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

Beiter, Klaus D. Article — Published Version Extraterritorial human rights obligations to “civilize” intellectual property law: Access to textbooks in Africa, copyright, and the right to education The Journal of World Intellectual Property Provided in Cooperation with: John Wiley & Sons Suggested Citation: Beiter, Klaus D. (2020) : Extraterritorial human rights obligations to “civilize” intellectual property law: Access to textbooks in Africa, copyright, and the right to education, The Journal of World Intellectual Property, ISSN 1747-1796, Wiley, Hoboken, NJ, Vol. 23, Iss. 3-4, pp. 232-266, https://doi.org/10.1111/jwip.12150 This Version is available at: https://hdl.handle.net/10419/230135 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. http://creativecommons.org/licenses/by/4.0/ J World Intellect Prop. 2020;23:232–266.232 | 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: [email protected] Funding information National Research Foundation of South Africa, Grant/Award Number: 111697 Abstract 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 --------------------------------------------------------------------------------------------------------------------------------------------- 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 this context 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 technological 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, “textbooks are a rare commodity in most developing countries. One book per student (in any subject) is the exception, not the rule, 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 books in children's languages a scarcity in all African languages and the virtual absence of books in many key languages (UNESCO Global education monitoring report, 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 | 233 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 coconuts. 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, intergovernmental 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 expansive 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 234 | BEITER advanced stages of socio‐economic development to slavishly replicate the developed states' intricate IP systems. In this context, access to textbooks—in the same way as technological development, food security, access to essential medicines, participation in cultural life, or sustainable traditional community life, as goods similarly threatened by IP rights—will remain a distant dream in the developing world unless a novel approach to obligations and accountability is adopted. All those wielding power in the design and implementation of global copyright and other IP law should no longer remain beyond the reach of human rights just because their conduct does not harm those within their own physical (or conceptual) territory. Actors whose conduct may have a detrimental effect on the enjoyment of the human rights of those beyond such territory must, in certain circumstances at least, be considered to bear human rights obligations with regard to those people far away. While it has been held that business enterprises should “respect internationally recognized human rights, wherever they operate”(Ruggie, 2011, Annex, Guiding Principle 23(a)) and that international organizations have human rights obligations “under, inter alia, general international law and international agreements to which they are parties” (Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, 2011, Principle 16), 10 the discussion here will focus on “extraterritorial state obligations”under international human rights law (IHRL) (in this sense, abbreviated ETOs here). IP law has so far refrained from endorsing the ETOs concept, the notion that states, in appropriate circumstances, hold human rights obligations toward those living beyond their own territory. In particular, international assistance and co‐operation obligations are implicated in this regard. This reluctance is regrettable if it is borne in mind that most IP, including copyright law originates at the international level. This is the level of state interaction, where each state, through the role it chooses to play in shaping and enforcing international IP law and policy, can advance or obstruct human rights in other states. It is in this context, therefore, that ETOs, also those arising under the right to education, could assume a key function in “civilizing”IP law. 11 The purpose of the discussion that follows is to demonstrate the significance of ETOs for IP law by recourse to the right to education as an example. The question is, in what way does the latter right, as protected by IHRL, by virtue of its extraterritorial application, prescribe requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Section 6will provide an introduction to the ETOs concept. Section 7will then attempt to identify typical ETOs under the right to education in the Berne, TRIPS, and FTA context that safeguard access to textbooks. 12 The provisions of the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011) and the familiar classification of states' human rights obligations as obligations to respect, protect, and fulfill human rights will help structure this part of the discussion. This exercise can, and should, be repeated for other fields of IP law in potential conflict with IHRL as well. The next two sections, Sections 3and 4, will, however, first outline the constraints of current copyright law in facilitating access to textbooks. Section 5will explain in what ways access to textbooks should be held covered by the right to education as protected by IHRL. The discussion relates to issues of accessibility in developing countries generally, but, in particular, the critical lack of access to textbooks in education in Africa motivated this study. The term “textbook”as used in the Article may mean typical textbooks designed for instructional use in schools and universities (or larger portions of such textbooks), all other books that may have an educational purpose (or larger portions of such books), or both. In the present context, the reference is not so much to scholarly literature for pure research purposes. The reference is further to printed textbooks. The term “learning materials,”by contrast, would be wider, including notably digital content too. 13 3|CONSTRAINTS OF CURRENT COPYRIGHT LAW: LIMITATIONS AND EXCEPTIONS Copyright is to serve as an incentive for the creation of knowledge or culture. Recourse to such knowledge or culture by others occurs against a reward being paid to the author. In accordance with the orthodox underpinnings BEITER | 235 of copyright law, the fact that the skill, labor, and judgment extended in producing new works is rewarded, is considered as crucial in leading to the production of literary, artistic, and other creative works that will enhance learning in society. 14 However, the mere availability of such works does not, of course, mean that everyone will also have access to these. There will be those unable to pay the reward. There will further be instances in which types of use of a work do not justify the lengthy process of obtaining author consent and/or the payment of any, or “the full,” reward. International copyright law provides for certain limitations and exceptions (L&Es) to copyright protection to safeguard the public interest in access to works that enjoy copyright protection, also for educational purposes. L&Es may allow use without the author's consent, but against (a potentially reduced) payment, or they may entail use without consent and without a reward. Remuneration becomes relevant where, and to the extent that, without this, the copyright holder's right of economic exploitation would be unreasonably prejudiced. 15 Far‐reaching entitlements to use that would usually only be available under contractual terms may further be awarded under a “compulsory license.”This is a very special type of L&E. As understood here, “compulsory licenses”are granted by a designated national agency in exceptional cases of urgency justifiable in the public interest. They must be specifically applied for and entail an obligation to pay fair remuneration. 16 Arts. 9 and 10 of the Berne Convention, for example, contain L&Es relevant in this context. Art. 9(2) allows the reproduction of literary or artistic works in circumscribed circumstances. 17 On the basis of art. 9(2), states parties could enact provisions that would permit students to make limited copies from textbooks (available in the library of an educational institution, for example) for purposes of personal or private use, research, or study. It may well be asked whether this could also cover students using such copies from typical or any other textbooks in class. If this is not private, it may yet be personal use. Art. 10(1) permits quotations from a literary or artistic work. Obviously, a quotation signifies a limited portion of a work. 18 Of significance for education is the teaching L&E in art. 10(2). This permits the utilization of literary or artistic works “by way of illustration”in, for example, publications “for teaching.”Such use may take place “to the extent justified by the purpose”and must be “compatible with fair practice.” 19 Use “by way of illustration”indicates that passages of a work or an entire small work may be used (Ricketson & Ginsburg, 2006, para. 13.45; Senftleben, 2004, p. 234). 20 “Teaching”means noncommercial teaching in educational institutions from the elementary up to the advanced level (Gervais, 2017, p. 93; Ricketson & Ginsburg, 2006, para. 13.45). Sam Ricketson and Jane Ginsburg note the restrictive nature of the accepted interpretation, as it excludes adult education courses not offered by the formal educational institutions themselves and also adult literacy campaigns (Ricketson & Ginsburg, 2006, para. 13.45). “Teaching”could further be interpreted not to include distance education as this does not take place within the physical location of an educational institution. 21 Beyond the requirement of “fair practice,”art. 10(2) does not impose any restriction on the number of copies that may be made (para. 13.45). “Fair practice”would, however, entail that, where large numbers of copiesaremadeforuseinclassbyindividualstudents,theamount copied will be “a highly relevant factor”(para. 13.45). Martin Senftleben maintains that art. 10(2) permits the use of all works, except those “intended for the use in schools, like a schoolbook,”as, in this instance, “the utilisation for teaching constitutes a major source of royalty revenue” (Senftleben, 2004,p.198). 22 Art. 9(2) permits the limited reproduction of works. The provision, as drafted in the wake of the 1967 revision of Berne, sets out the famous three‐step test of copyright law. States parties may accordingly enact national L&Es that permit the reproduction of works. Under art. 9(2), such permission may only apply: 1. “in certain special cases,” 2. if reproduction “does not conflict with a normal exploitation of the work,”and 3. if it “does not unreasonably prejudice the legitimate interests of the author.” L&Es under art. 10 are leges speciales. Yet, their inclusion of a test of proportionality and a reference to “fair practice”suggest a close link to reasoning under the three‐step test, which requires a balance between the interests of right holders, those of users, and those of the wider public to be established (Gervais, 2017, p. 93; 236 | BEITER Ricketson & Ginsburg, 2006, para. 13.45). 23 In any event, art. 13 of TRIPS now makes the three‐step test applicable to L&Es in copyright law more generally. While the three‐step test could be read constructively and dynamically as “a clause not merely limiting limitations, but empowering contracting States to enact them, subject to the proportionality test that forms its core and that fully takes into account, inter alia, fundamental rights and freedoms and the general public interest,”the reality is that it is widely read restrictively as “imposing limits on the “erosion” of copyright”(Hugenholtz & Okediji, 2008, p. 25). The WTO itself, for example, does not construe the test holistically with an emphasis on the third leg, which stresses compromise between diverse interests, but initially focuses on its first leg, interpreting this very literally as requiring L&Es to be “narrow in quantitative as well as a qualitative sense”(United States—Section 110(5) of the U.S. Copyright Act, 2000, para. 6.109). Contesting such disempowering readings of the test, a group of respected copyright law experts, in a formal statement of 2008, held that “certain interpretations of the Three‐Step Test at international level [are] undesirable,”and that “national courts and legislatures have been wrongly influenced by restrictive interpretations of that Test”(Declaration on a Balanced Interpretation of the Three‐Step Test in Copyright Law, 2008, p. 711). In the developing world, it is also problematic that L&Es under international copyright law are not compulsory. This renders many a developing country vulnerable to accepting the deceptive promises by developed states of funds for “capacity building”to help setting up copyright structures in return for not making use of the L&Es and not undertaking copyright law reforms that would adequately address issues of access (Okediji, 2017, p. 481). In the extreme, developed states might communicate outright threats of retaliation (pp. 480–481). Moreover, the flexibility of international L&Es means that they must be concretized at the national level. This is a daunting exercise for countries that lack the institutional capacity to do so (p. 480). Further, and fundamentally, even a benevolent construction of the above L&Es in terms of conventional copyright law wisdom will not solve problems of legitimate access as such for the masses. Ruth Okediji explains it as follows: Limitations and exceptions to IP rights certainly can address specific challenges, but rarely are they sufficient to meet the development‐related challenges—such as bulk access to educational works—facing many least‐developed and developing countries. …Existing limitations and exceptions available in international copyright law, and in many domestic copyright laws, do not extend to institutional, community or group needs. (Okediji, 2018, p. 34). The L&Es would permit spontaneous, occasional use (Gervais, 2017,p.93).TheL&Eswouldnot,however,permit educational institutions photocopying (substantial portions of) a textbook and making that available for free or cheaply to students, or including it in a course pack. In more developed states, it is customary for educational institutions to conclude use agreements with collecting societies that regulate utilization under the L&Es, and beyond these, against remuneration. However, even these agreements would usually not provide for bulk access. Quite apart from that, educational institutions in developing countries frequently lack the necessary capacity and resources to conclude such agreements (Chon, 2007, p. 831). In general, the collecting society model appears ill‐suited for developing countries in the short to medium term (Commission on Intellectual Property Rights, 2003,p.99).Collectingsocietiesareexpensive and bureaucratic, have a propensity to wield significant market power, and in developing countries happen to collect far more royalties for IP right holders from rich countries than for local creators (pp. 98–99). Beyond permissions to translate that may be covered under the above L&Es, the Berne/TRIPS system does not provide for special L&Es for translation. It is true that there are certain special provisions that would allow the translation of books. However, these are either irrelevant today—to wit, the clause on the so‐called “ten‐year regime”—or have proven unworkable in practice—thus, the provisions of the Appendix to the Berne Convention. The latter, envisioning a compulsory licensing scheme for developing countries, merit separate discussion under the following heading. 24 In terms of the 10‐year regime, an author's translation rights with regard to a specific language expire, if, 10 years after the first publication of the original work, no translation into that language has been BEITER | 237 effected by the author or with his or her authorization. 25 While the 10‐year regime, in principle, could have facilitated large‐scale access to works for educational purposes (concurring Silva, 2013, p. 585), 26 it has become irrelevant today as it could only be made applicable, in certain instances, on ratification of, or accession to, the Berne Convention of 1971. It may also be noted that 10 years is a very long time for works of the natural and physical sciences and of technology, where knowledge becomes outdated very quickly (pp. 585–586). 27 The absence of L&Es for translation is highly problematic. The former U.N. Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, points out that whereas speakers of the world's major languages may choose from among “millions of books,”speakers of local languages have access to “very few”(Shaheed, 2014, para. 68). It is not only the limited size of the linguistic communities to which local language speakers belong, but more significantly the overall socio‐economic situation of these communities, regularly characterized by general structural disadvantagement, that has the effect that there usually does not exist a major publishing market for the languages spoken (Shaver, 2014, p. 117). 28 This is certainly true for the African context, where, in the production of materials, local languages are ignored in favor of English, French, or Portuguese (Story, 2003, p. 798). The absence of L&Es for translation is problematic from a nondiscrimination perspective, as it disproportionately affects those not speaking a globally used language. 29 However, it also poses a substantial barrier to the right to take part in cultural life (Shaheed, 2014, para. 68) and further disregards the needs of linguistic groups for whom the ability to translate works into their own languages is essential for education (para. 69). In the same way that there is no single, broad international education L&E, none exists for libraries (including those of schools or universities). A 2017 WIPO study recognizes that L&Es for libraries “are fundamental to the structure of copyright law”(Crews, 2017, para. 6) and “serve public interests by permitting libraries to make socially beneficial uses of copyrighted works”(para. 8). Countries currently provide for L&Es that allow libraries to make copies of mostly shorter works for individual readers or researchers on request, or that permit reproduction for preservation or replacement purposes (para. 7). However, yet again, what is needed, at any rate in developmental contexts, is an L&E for libraries (and, generally, all kinds of cultural institutions and literacy‐enhancing centers or initiatives) that could ensure access to works on a large scale (broadly in this sense Okediji, 2017, pp. 479–480, 491–492). At present, a library cannot produce multiple copies of a textbook, or larger portions within, to satisfy demands for access by poorer students or other readers. 4|CONSTRAINTS OF CURRENT COPYRIGHT LAW: THE BERNE APPENDIX The Appendix to the Berne Convention of 1971 (also made a part of TRIPS) 30 provides for a compulsory licensing scheme, permitting translation or reproduction of a (whole) work against compensation without the consent of the copyright holder. Developing countries, as per U.N. definition, may avail themselves of the arrangements of the scheme. 31 They must notify their intention to do so to WIPO. 32 The scheme must then be implemented domestically. Licenses are to be granted by a “competent authority.” 33 Whereas the L&Es discussed above relate to entitlements to utilize portions of a copyrighted work of which one holds a legitimate copy, the Berne Appendix is precisely about access to legitimate copies; it is about bulk access in developing countries, that is, the provision of multiple copies of a work at affordable prices (Okediji, 2006, p. 15). Compulsory licensing under the Appendix is subject to complicated rules, however. Translation and reproduction licenses are governed separately. Atranslation license may be applied for if, 3 years after the first publication of a work, no translation into the relevant local language (“a language in general use”in the developing country) has been published (anywhere in the world) by, or with the consent of, the holder of the right of translation. 34 A license may only be granted “for the purpose of teaching, scholarship or research.” 35 Areproduction license may be applied for if, after 5 years 36 of the first publication of a particular edition of a work, copies of such edition have not been distributed in the developing country to the general public, or in connection with systematic instructional activities, at a normal price in that 238 | BEITER country, by, or with the consent of, the holder of the right of reproduction. 37 Alicensemayonlybegranted“in connection with systematic instructional activities.” 38 “Teaching”(translation license) or “instruction”(reproduction license) includes noncommercial elementary as well as advanced teaching (similarly, Ricketson & Ginsburg, 2006, paras. 14.68, 14.86). However, it seems neither license can be used to provide access beyond “organized”education. 39 Hence, they cannot be relied on to stock local libraries or community centers—which may play a crucial role in informal education—with (multiple) copies of (translated) textbooks (in this vein, Ncube, 2017b,p.270). 40 Furthermore, reproduced copies cannot be made available for free to students. The Appendix requires the charging of the normal or a lower price. 41 Where a translation or reproduction license is applied for, the Appendix further requires a grace period to elapse, beyond the time‐limits mentioned, before the license may be granted. 42 This is to allow the copyright holder to have a translation published at a price normal for the developing country, or to have copies of an edition distributed in that country at a normal price, within that period to avoid a license being granted. 43 Accordingly, the grace period is meant to give the original copyright holder every opportunity to supply the local market concerned (Okediji, 2006, p. 15). Moreover, it should also be noted that if an author chooses to exercise his or her moral right to withdraw all copies of the work or the specific edition from circulation, no license can be granted, 44 suggesting that in certain cases, works could be completely out of reach of users in developing countries (p. 15). It appears that it is the states themselves, or state‐owned enterprises, that may apply for licenses under the Appendix (Helfer & Austin, 2011, p. 338). 45 Importantly, a license may only be granted if it has been shown that the copyright holder has been approached and has denied consent, or, that, after due diligence, the copyright holder could not be traced. 46 The Appendix provides for just compensation to be paid to copyright holders. 47 Licenses usually do not extend to the export of copies and they permit publication within the granting country only. 48 Export and import licenses would, however, be of vital importance in developmental contexts (Silva, 2013, pp. 617–619, 628–629). Developing countries will often lack manufacturing capacities or have a book market which is too small to justify publication in the circumstances (p. 628). The Appendix has not been a success. Only 18 countries worldwide have made declarations relating to the Appendix so far. 49 In 2013, only 3 countries could be identified as having implemented the mechanism into domestic law (Silva, 2013, p. 594). As for Africa, only 4 countries (Algeria, Egypt, Niger, and Sudan) have made declarations relating to the Appendix. 50 It seems only Uganda, not even a party to the Berne Convention, has implemented the mechanism (Kawooya, Kakungulu, & Akubu, 2010, pp. 283, 288). Simultaneously—as may be confirmed for developing states generally—various African states, beyond the Appendix framework, provide for arrangements adjusting those of the Appendix to develop highly idiosyncratic national solutions (Fometeu, 2009, p. 42; Silva, 2013, pp. 590–605). 51 As Alberto Cerda Silva describes it, “developing countries are doing it their own way”(Silva, 2013, p. 598). On the one hand, it remains a question whether the respective arrangements are in compliance with international copyright law (p. 604). On the other, domestic authorities, fearing that they are not, do not, in fact, implement them (p. 604). As for Africa, for instance, “research …did not reveal any license granted within the framework of these provisions” (Fometeu, 2009,p.42). Sam Ricketson and Jane Ginsburg comment that “it is hard to point to any obvious benefits that have flowed directly to developing countries from the adoption of the Appendix”(Ricketson & Ginsburg, 2006, para. 14.106). Silva holds that the Appendix of the Berne Convention does not work because it does not meet the needs of developing countries. Instead, the Appendix comes across as an obsolete, inappropriate, bureaucratic, and extremely limited attempt to provide an air valve for developing countries. (Silva, 2013, p. 590). Ruth Okediji is also very outspoken. “By all accounts,”she says, the Berne Appendix has been “a failure” (Okediji, 2006, p. 15). 52 Effective application of the arrangements depends on developing countries enacting BEITER | 239 7.1 |Respecting and protecting the right to education 1. Respect:WIPO members should not engage in any conduct in WIPO nullifying or impairing the enjoyment of the right to education in any member, or impairing that member's ability to respect, protect, and fulfill the right to education. They must refrain from supporting policies or measures, or agreeing to provisions in (or adopting) copyright treaties, that have any such consequences. Likewise, WTO members should not engage in any conduct in the WTO—and they must refrain from supporting WTO‐TRIPS policies or measures—having such consequences. 2. Respect: Powerful WTO members should not compel developing members to subordinate to (assailable) conceptions of copyright protection that jeopardize access to textbooks. As has been noted, given the three‐step test is now part of TRIPS, an instrument with “teeth,”enacting domestic L&Es has become a risky and uncertain affair—policy‐makers in developed countries will often communicate threats to their counterparts in developing countries (Okediji, 2017, p. 480). Developing states must be held entitled to fully utilize the potential of open‐ended provisions (e.g., those restating the three‐step test) and specific flexibilities provided for (e.g., compulsory licenses or parallel imports) in Berne and TRIPS to protect the public interest in education. Such an interpretation accords with the TRIPS objectives in art. 7 and the public interest principles of TRIPS in art. 8 of TRIPS and also the right to education of IHRL. The overarching aim of art. 7 of TRIPS is to achieve balance in IP law between the creation and dissemination of technology and knowledge, rights of IP right holders and users, and the rights and duties of IP right holders. Art. 8(1) of TRIPS states that members “may …adopt measures necessary …to promote the public interest in sectors of vital importance to their socio‐economic …development.”Arts. 7 and 8 should play a crucial role in tempering TRIPS and TRIPS‐plus law (Yu, 2009). However, as the emphasis in this Article is on the direct effect of norms outside international IP law on IP law, arts. 7 and 8 do not stand at the center of the discussion. In practice, however, they remain relevant. Arts. 7 and 8 constitute “points of entry”for IHRL concerns into the international IP regime. The argument made here is that temperation (even if achieved via arts. 7 and 8) may (also) be said to be a direct requirement under an external ETO norm. 80 3. Protect:Developed states should, to the extent possible, ensure that publishers sufficiently linked to their sphere of control, or whose conduct they can influence, do not exploit copyright to the detriment of students, parents, and teachers in developing states, for example by charging excessive prices for textbooks. 81 Excessive pricing is facilitated by foreign firms being dominant in local book markets. Developed states should adopt rules for differential pricing, allowing for a reasonable profit, but requiring prices to correlate to percentages of per capita GNI expended for books, thus taking into account the circumstances of the countries concerned. Anticompetitive conduct “elsewhere”is as reprehensible as anticompetitive conduct “at home,”especially if it threatens human rights. 7.2 |A road map, human rights impact assessments, reforming the Berne Appendix and TRIPS, and bulk access 4. Facilitate:Each state should adopt policies, a road‐map, as it were, with respect to its actions within the WIPO or WTO context, setting out how it can contribute to protecting the right to education, and other human rights, in that context. This is not to accord a(n) (unwarranted) mandate to WIPO or the WTO to realize human rights, but rather to ensure that, where these organizations' conduct could have an impact on human rights, it should advance these, namely by preserving each state's ability itself to respect, protect, and fulfill human rights. The stated road‐ map should incorporate principles on voting or consensus behavior, regular dialogue with developing countries, proactive measures for reform or norm clarification, co‐operative approaches in respect of countries struggling to comply with Berne or TRIPS, and so on. 246 | BEITER 5. Facilitate:WIPO and WTO members should subject WIPO treaties, such as the Berne Convention, and TRIPS to regular human rights impact assessments, to identify potential need for reform (reinterpretation or textual reform), directed at protecting the right to education or other human rights. The former U.N. Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, thus urges that international copyright instruments should be subjected to human rights impact assessments (Shaheed, 2014, para. 94). These instruments “should never impede the ability of States to adopt exceptions and limitations that reconcile copyright protection with …human rights, based on domestic circumstances”(para. 95). 6. Facilitate:WIPO members should initiate, promote, and help realize a reform of the compulsory licensing scheme of the Berne Appendix to make this work for developing states: the distinction between translation and reproduction licenses should be eliminated and the simultaneous application for both licenses under the same conditions be allowed; waiting and grace periods should be abolished; seeking consent of the copyright holder should be dispensed with; licenses should be available with respect to informal education as well (stocking public libraries, community centers, and so on); licenses should be available when the author chooses to withdraw all copies of the work or the specific edition from circulation; distribution of free copies should be legitimate; just compensation to the copyright holder should be moderate and only paid to the extent that the latter loses any market opportunity; and publication should be permitted in another country for export to the country in need (see also Fometeu, 2009, p. 43; Okediji, 2006, p. 29; Silva, 2013, pp. 626–629). 82 Altogether, procedures should be simplified and the instrument reflect “good will”on the part of developed countries. 7. Facilitate:WTO members should initiate, promote, and help realize a reform of TRIPS that safeguards the right to education and other human rights. 83 Annette Kur and others propose, for example, that art. 7 “Objectives”should include a reference to “the larger public interest …in education”(Kur & Levin, 2011, pp. 463–464). 84 Better yet would be an explicit reference here to all those human rights, including education, relevant in the TRIPS context. The authors propose a new art. 8a, seeking “a fair balance between private economic interests and the larger public interest as well as the interests of third parties”(p. 465) 85 and setting out a more empowering version of the three‐step test for IP law, which puts the stress on what is now the third leg of the test and proceeds on the premise that users may use protected subject matter provided this “does not unreasonably prejudice the legitimate interests of the right holder”(pp. 465–466). 86 According to the authors, art. 13 on L&Es in copyright law should provide for a mandatory L&E with respect to “use made for the purpose of …illustration for teaching …to the extent that this is necessary for the relevant purpose”(optional in Berne) (pp. 470–471, 559–560), 87 a mandatory L&E with respect to “acts of reproduction made by publicly accessible libraries, educational establishments, …which are necessary for these institutions to perform their tasks”(missing in Berne) (pp. 470–471, 562–563), 88 and an open clause permitting other enacted restrictions of copyright subject to the (redrafted) arts. 7 to 8b (also missing in Berne) (pp. 472, 565). 89 The latter clause was to serve as a reminder that countries were entitled, even expected, to adopt “more detailed and far‐ reaching limitations”than those in a mandatory catalogue—as long as they were compatible with the more generous three‐step test proposed (p. 565). 90 8. Facilitate: It has been stated above that the right to education has traits of the right to development. 91 It is vital that international IP law be designed in such a way as to allow each country to utilize the “policy space”it needs to address development objectives (e.g., Abdel‐Latif, 2015, p. 614). 92 Especially in developing countries, L&Es will be necessary that can facilitate bulk access to textbooks. Explicitly worded L&Es for educational institutions that countries may rely on to achieve such access may have to be made available in “the TRIPS context.”The civil society draft Access to Knowledge Treaty of 2005 proposes as L&Es, on the one hand, the free use by educational institutions of works as secondary readings for enrolled students; 93 on the other, their use of works as primary instructional materials in return for equitable remuneration, if these materials are not made readily available by right holders at a reasonable price. 94 BEITER | 247 Quite generally, “remuneration‐based L&Es”(also termed “statutory licenses”) are a potent device in facilitating access. In instances where access would ordinarily affect the typical market for a product (as in the case of bulk usage of primary teaching materials), far‐reaching entitlements to use, without consent, conferred by legislation could yet be considered legitimate if important welfare interests in a state are at stake and if such permission is subject to fair remuneration being paid (which could also be done by the state directly rather than by educational institutions). Where in such circumstances of public urgency no such market would be affected (as broadly in the case of secondary teaching materials), there is no reason not to grant far‐reaching entitlements to use for free.In many developing countries—it should be kept in mind—what constitutes “a reasonable price”for “primary instructional materials,”and any remuneration thus due, will have to take into account the fact that the market for such materials will be rather weak, if not nonexistent (see also Suthersanen, 2005, p. 12). 95 Consequently, as an adjunct to the obligation in Point 7, the right to education—specifically conceived as a right to development—requires that WTO members should initiate, promote, and help realize a reform of TRIPS that permits recourse to L&Es that can facilitate a bulk provision of textbooks in educational institutions. 7.3 |The WIPO, the WTO, treaty interpretation, development aid, and technical assistance 9. Facilitate:WIPO members should initiate, promote, and help implement processes and, where necessary, reforms, that enhance conformity between WIPO structures and agendas and IHRL, the latter, of course, guaranteeing the right to education and the right to development. Therefore, at the initiative of essentially developing states, WIPO adopted the WIPO Development Agenda in 2007, a policy framework to ensure its activities take into account the special needs of developing countries. 96 The Agenda's 45 Recommendations emphasize the importance of a robust public domain (WIPO Development Agenda Recommendations, 2007, Recommendations 16 and 20), access to knowledge for developing states (Recommendation 19), and norm‐setting activities related to L&Es by WIPO backing development goals (Recommendation 22(d)). 97 The Development Agenda may potentially become a suitable basis for strengthening the public interest in international IP law. 98 It is the actual implementation of the recommendations that will determine whether the Development Agenda effectively contributes to access to knowledge (Abdel‐Latif, 2010, pp. 119–120) and other Agenda goals. WIPO is busy examining questions regarding two possible international instruments on L&Es for education and libraries. 99 10. Facilitate:WTO members should initiate, promote, and help implement processes, and, where necessary, reforms, that enhance conformity between WTO structures and agendas and IHRL, the latter guaranteeing the right to education and the right to development. It is widely agreed that the WTO reveals a development deficit (see, e.g., U.N. High Commissioner for Human Rights, 2004, para. 38). 100 Relying on arts. 7 and 8 of TRIPS and ETOs under IHRL, the Council for TRIPS should support development on maximum standards, L&Es, and right holders' obligations 101 —inter alia to ensure quality education for all and national development through education remain achievable goals. For example, concerning right holders' responsibilities, Christophe Geiger proposes as a general guiding principle, a duty of right holders to disseminate as widely as possible protected works and to exploit them (Geiger, 2017, p. 93). As part of its monitoring mandate, the TRIPS Council should assess the impact of TRIPS rules and policies on development. 102 WTO members bear responsibility for ensuring that the right to education, as normatively enhanced by the right to development, is mainstreamed into WTO structure and practice. 11. Facilitate:WTO members should initiate, promote, and help adopt and implement safeguard policies (or at least promote a consistent practice) in terms of which the Council for TRIPS and WTO adjudicatory bodies are to interpret TRIPS law in conformity with WTO members' obligations under IHRL. Arts. 7 and 8 of TRIPS play a seminal role in interpreting TRIPS. Inter alia, the Vienna Convention on the Law of Treaties requires treaty terms to be interpreted in their context. The context includes “any relevant rules of international law applicable in the relations between the parties”(Vienna Convention, art. 31(3)(c)). As Henning Grosse Ruse‐Khan explains, arts. 248 | BEITER 7 and 8 function as integration principles (Grosse Ruse‐Khan, 2016, paras. 13.03–13.58). They are a tool for integrating the objectives pursued by other international agreements (para. 13.44). In this way, the right to education in art. 13 of the ICESCR—not least in its developmental dimension (policy space for educational development)—becomes relevant to interpreting TRIPS. However, in the context of the present discussion, the notion of ETOs adds a novel aspect. The obligation of “systemic integration”flows no longer only from the rules of treaty interpretation, but may also be said to result from ETOs under IHRL. In the latter version of the obligation, though, human rights add priority. 103 12. Provide:Developed states that are in a position to do so, should, in accordance with the requests of developing states in need, make available funds to the latter as part of their ODA, to contribute toward the cost of remuneration rights of (foreign or global) copyright holders as referred to under Point 8 (Section 7.2) above, the cost of any compulsory licenses under the Berne Appendix, and the cost of (especially imported) textbooks generally. 13. Provide:Developed states that are in a position to do so, should, in accordance with the requests of developing states in need, make available technical assistance to the latter, aiding them in setting up IP and copyright protection systems that satisfy the requirements of international IP and human rights law (for example, advising on L&Es for education that facilitate adequate access to textbooks). 7.4 |Three‐step test, limitations and exceptions for education, TRIPS flexibilities, and FTAs 14. Facilitate:WIPO and WTO members should initiate, promote, and help adopt and implement a joint WIPO/ WTO policy or soft law instrument calling for a balanced interpretation of the three‐step test and providing doctrinal clarity and concrete guidelines on how to apply the test in a way that protects the interests of authors, users, and the wider public, and, generally, safeguards important human rights concerns. 104 This would be additional to any actual reformulation of the test in hard law (notably TRIPS). 105 It has been noted that various alternative approaches have been developed in literature and applied by national courts, including an understanding of the three‐step test as a refined proportionality test, the use of its abstract criteria as factors to be weighed in a global balancing exercise and a reverse reading of the test starting with the last, most flexible criterion. (Geiger, Gervais, & Senftleben, 2014, p. 626). The test should be understood holistically with an emphasis on the third leg. Conflict with the normal (economic) exploitation of a work (the subject of inquiry of the second leg) should be one, admittedly an important, consideration among many—these also including access to education—in assessing whether use unreasonably prejudices the legitimate interests of the right holder. It may be overridden where vital economic, social, or cultural needs justify this, specifically if some form of remuneration is paid by someone. The first leg should treat use by others as a normal incidence of copyright, unless exclusion is legitimate. Accepting the ETO to create and read international IP law in accordance with human rights, it will be readily apparent that the three‐step test must perfectly mirror the demands of human rights. Or, stated differently: the three‐step test must permit any such use as constitutes an entitlement under human rights. Naturally, a solution that is legitimate in a developing country need not be so in an industrialized country. 15. Facilitate: There needs to be clarity on which L&Es for education are permissible, which are to be mandatory, and what their respective scope should be, to adequately protect the right to education. This might be addressed as part of revising, or re‐enacting, Berne (Gervais, 2017) 106 and/or TRIPS (Kur & Levin, 2011). 107 Increasingly, however, there are calls for a separate international instrument on L&Es (Hugenholtz & Okediji, 2008), BEITER | 249 or even specific instruments on L&Es for education and libraries (Shaheed, 2014, para. 109). 108 Yet others propose recourse to “an international intellectual property “acquis”” (Dinwoodie & Dreyfuss, 2015, p. 122), 109 which, in a sense, refers to something like a “document”of basic, “best,”or “proven”principles. There need to be robust personal or private use, teaching and education, library and literacy, and translation L&Es (potentially remuneration‐based in certain cases). As for the current teaching L&E, this should mature into a comprehensive education L&E benefiting noncommercial educational institutions. It must cater for utilizing the whole of a work in appropriate circumstances (Consumers International, 2006, p. 29). Interestingly, Margaret Chon has suggested with regard to art. 10(2) of the Berne Convention that developing states should, based on a principle of substantive equality, fully exhaust that provision's potential “to create access to works for educational purposes that may counterbalance [a] lack of bulk access to textbooks”(Chon, 2007, pp. 837–839, citation at p. 838). 110 The L&E must cover reproduction right, translation right, and adaptation right –perhaps even the right of communication to the public (Consumers International, 2006, p. 30). It must permit utilization in distance education (p. 30). Library and literacy L&Es should, likewise, facilitate bulk provision to serve wider, also informal, education needs in appropriate circumstances. It has sensibly been suggested that there should be “local language limitations,”generally—that is, also beyond the educational context—permitting translations into neglected local languages (Ncube, 2017b, pp. 275–276; similarly, Basalamah, 2000, p. 535). 111 There should further be a general provision in terms of which exclusive translation rights regarding a work terminate for a specific language in a country, if, let's say, 3 or 5 years after first publication, the work has not been made available in that language in the country concerned (similarly, Ncube, 2017b, pp. 274–275; Silva, 2013, pp. 585–586, 624–625). Moreover, a fair use provision makes sense. “Fair use”means an open clause exemption to copyright protection, which generally and in light of broad criteria covers uses that may be considered “fair,”as adjudged on a case by case basis (ultimately by the courts). 112 A fair use provision in national legislation should benefit access to knowledge protected by copyright (Consumers International, 2006, pp. 27–28). Elements of “fair use”could be combined with those of “fair dealing”(“fair dealing”enumerating more narrowly what may be considered “fair” forms of use) to facilitate access to copyrighted materials for purposes of education (Isiko Štrba, 2012, pp. 111–157, 163–164). With regard to fair use, it has thus been suggested that courts should perhaps presume educational use to be fair (Samuelson, 2009, p. 2587). Where use does not fall within the scope of specific provisions but fulfills the requirements of the general provision, such use would be allowed, even though national legislation did not specifically contemplate such use, to benefit access to copyright‐protected knowledge (Consumers International, 2006, pp. 27–28). Prominent writers have argued in favor of an international fair use doctrine unfettered by the three‐step test (Okediji, 2000). 113 Fair use, by reason of its generality, has a strained relationship with the three‐step test (pp. 117–121). 114 However, fair use would survive scrutiny under the test in its “compassionate,”human rights‐aligned version as referred to under the previous point. Altogether, the relevant ETO for this point might be formulated as follows: WIPO and WTO members should initiate, promote, and help adopt and implement an exposition of L&Es for education—as part of a revised, or re‐ enacted, Berne and/or TRIPS agreement, and/or in a separate, soft or hard law general or cluster, or “basic (best) principles,”international document—that adequately protects access to educational materials as part of the right to education. 115 16. Facilitate:WTO members should initiate, promote, and help adopt and implement a policy or soft law instrument on TRIPS and educational materials (akin to the Doha Declaration on the TRIPS Agreement and Public Health, adopted at the WTO Ministerial Conference in 2001) that encourages developing states to fully utilize the flexibilities provided for under TRIPS, notably compulsory licenses and parallel imports, to protect the right to education (e.g., Staudinger, 2015). Though the use of compulsory licenses in the field of copyright beyond the Berne Appendix is not expressly dealt with in TRIPS, developing states are not prohibited from using compulsory licenses beyond the Berne Appendix (e.g., Isiko Štrba, 2012, pp. 157–164; Okediji, 2006, p. 18). 116 This must be considered especially true for 250 | BEITER as long as the Appendix is dysfunctional. A national body might grant licenses in cases of an abuse of copyright (e.g., anticompetitive conduct involving the charging of excessive prices for specific textbooks, unreasonably refusing a translation or reproduction license, or offering it for an unreasonable fee or on other unreasonable terms) or situations of serious undersupply of textbooks, where granting such licenses would be in the public interest. 117 In case of default on the part of national agencies, it should be possible, in certain cases, to approach an international body—for instance, WIPO—for a compulsory license (similarly, Silva, 2013, p. 623). 118 As for parallel imports, developing states should enact international exhaustion rules that would facilitate parallel imports of cheaper copyright‐based educational materials, for example those that pass muster under the provisions on fair use in other countries (Chon, 2007, p. 839). Developed states are likely to exert pressure on developing states to enact national exhaustion rules that safeguard the exclusive right of IP right holders to import and sell, or otherwise distribute, articles based on their IP right produced and sold abroad. The effect of art. 6 of TRIPS, however, is to leave it to WTO members to choose either regime of exhaustion for any field of IP law. Developing states can, therefore, not be forbidden to opt for a regime in terms of which copyright entitlements are exhausted once textbooks have been produced and sold in another country, thus permitting parallel imports of such textbooks. 17. Facilitate:WTO members should elaborate, interpret, and apply FTAs regulating copyright in a manner consistent with their international human rights obligations. Prior and subsequent to their conclusion, WTO members should subject FTAs to human rights impact assessments, also in respect of their extraterritorial effects. These days, many FTAs provide for levels of IP protection exceeding those envisaged under TRIPS. In so doing, they may pose a threat to the right to education and other human rights. By way of example, Morocco has concluded an FTA with the United States containing TRIPS‐plus provisions. The term of copyright protection is 70 rather than 50 years, parallel imports are not allowed, and more precise standards forbidding the circumvention of TPMs (digital works) are stipulated. 119 Many FTAs erode the policy space that is provided on the multilateral level (Grosse Ruse‐Khan, 2011, p. 364). They further lead to a fragmentation of the international regulatory system (the famous “spaghetti bowl”), with powerful states strategically creating inconsistencies with IHRL (Yu, 2012, pp. 1090–1091). Consequently, many FTAs undermine human rights, including those to education and development. However, as a result of obligations within and outside international IP law, “TRIPS …does not only create a “floor”of minimum protection, but opens the door to ceilings which place a binding maximum level [on] the protection of IP”(Kur & Grosse Ruse‐Khan, 2008, p. 68). In light of arts. 7 and 8 of TRIPS and ETOs under IHRL, FTAs should never impose limitations on utilizing flexibilities available under TRIPS that could be relied on to safeguard access to educational materials. L&Es for education may not be eroded. The three‐step test must find its most empowering application. Infringements of copyright not occurring on a commercial scale should not be criminalized. Where necessary, provisions in FTAs need to be modified or deleted, appropriate safeguard clauses be included, or agreements as a whole be terminated. 7.5 |Reporting obligations, obligations of conduct and result, and questioning copyright as such 18. Facilitate: At the moment, TRIPS countries are only required to report on their compliance with IP protection prescribed by TRIPS to the Council for TRIPS. 120 ETOs under the right to education, and other economic, social, and cultural rights, entail that WTO members should expand the reporting mechanism, requiring TRIPS countries, in regular intervals, to report on their use of L&Es and flexibilities, available under TRIPS, to safeguard the development goals of arts. 7 and 8 of TRIPS (also access to knowledge or textbooks), as normatively enhanced by IHRL (including the right to education and the right to development), for consideration by the TRIPS Council (similarly, Okediji, 2018,pp.64–65). The Council should adopt recommendations, advising members on how to optimally use the policy space available under TRIPS to protect development, including in the sphere of education. BEITER | 251 19. Facilitate: From the analysis so far it is apparent that, in the present context, the duty to facilitate is prominent as an ETO under the right to education at the level of fulfilling rights. In the above examples, these duties are, to use the International Law Commission's well‐known distinction between obligations of conduct and result (International Law Commission Yearbook, 1977, pp. 11–30), 121 obligations of conduct linked to a broader obligation of result. The latter prescribes the result to be achieved: States should create an international enabling environment conducive to the fulfillment of the right of access to textbooks. The former prescribe, with varying degrees of urgency, the specific type of conduct to be followed, as elucidated above. 122 Thus, for example, a reform of the Berne Appendix (or equivalent conduct) may be considered “prescribed” conduct. Achievement of the result—conditions facilitating access to textbooks—may, in general, of course, also be advanced through other forms of conduct not specifically prescribed as described above. That these are not specifically prescribed does not mean that meaningful other measures, whatever they would be, must not also be taken. To identify possible measures, thinking outside the box is desirable. Hence, one may see the typical textbook for what it is, an instrumentality to achieve certain learning outcomes, rather than a work of great originality. 123 Consequently, copyright protection for such works might well be restricted to, let's say, 3 years. During that period, the publisher can materialize the larger share of anticipated profits, while, after this period, books would not yet be out of date. However, would this maintain the incentive of (private) publishers to produce textbooks? State subsidies to, or tax relief for, publishers are conceivable measures to maintain this. The right to education, per definition, requires the state to realize—that is, to pay for—the education system. In any event, the state should assume a more prominent role in textbook production and, wherever possible, retain copyright. In sum, therefore, beyond specific conduct identified as mandatory in creating an international enabling environment conducive to the fulfillment of the right of access to textbooks, states should also, separately and jointly, take all such other deliberate, concrete, and targeted steps, they deem appropriate, as would contribute to creating such an environment. 20. Facilitate: Daniel Gervais has recently argued in favor of a “middle way”in international IP law, a way that “make[s] the system work for all stakeholders, taking due account of the fact that each country or region needs some room to calibrate their IP regime to their own situation”(Gervais, 2016, pp. 136–137). To a large extent, the above discussion has made suggestions in line with the proposal for a middle way. It is not clear at all, however, whether the current copyright system can be made to work for all in the end. The legitimacy crisis of copyright runs deep. IP rights have become mere investment‐protecting devices, with little social benefit (Geiger, 2015, p. 662). 124 As Christophe Geiger highlights, copyright has lost its quality as an access right. There would, accordingly, be the need to rethink copyright to adapt its rules to its initially dual character: 1) of a right to secure and organize cultural participation and access to creative works (access aspect); and 2) of a guarantee that the creator participates fairly in the fruit of the commercial exploitation of his works (protection aspect). (Geiger, 2017, p. 75). These days, most authors do not benefit from copyright. Profits essentially accrue to “large, impersonal and unlovable corporations”(Ginsburg, 2002, p. 62). On a more fundamental level, copyright may even be too alien a construct for countries of the South. Rosemary Coombe notes: The range of Western beliefs that define intellectual and cultural property laws …are not universal values that express the full range of human possibility, but particular, interested fictions emergent from a history of colonialism that has disempowered many of the world's peoples. (Coombe, 1998, p. 247). 252 | BEITER Recently, courts—such as, for instance, the European Court of Human Rights—haveshownanenhancedwillingness to assess the rules of copyright law against freedom of expression more generally. 125 A wholesale subjection of the IP, including the copyright system—and its proprietary premise that justifies exclusion—to a review in light of economic, social, cultural, and group or solidarity rights by legislators and courts, however, has so far not taken place. An assessment in light of these rights, with their emphasis on access—facilitating health care, food security, education, cultural participation, socio‐economic development, and so on—could potentially require questioning copyright as an institution, and its replacement by an alternative system, altogether (similarly, Okediji, 2018,p.37). 126 It should be appreciated that a system that respects the moral and material interests of creators, but simultaneously facilitates access, can look very different from current copyright law (e.g., Story, Darch, & Halbert, 2006,p.53). 127 In light of these observations, it remains to be seen whether the suggestions made in this Article are sufficient to secure access rights. As the ETOs set out in Points 1–19 are complied with, states should,overtime,monitorprogress toward achievement of the access goals. Failing sufficient progress, a global obligation necessitating that states should undertake more drastic reforms is triggered. In this instance, states should reassess international copyright law and its embedment in the related world trade system in principle. As radical as it may sound, if necessary, they should do away with the current system altogether and substitute it with an alternative system. Also these are ETOs arising under the right to education, the right to development, and other international human rights. 8|ETOs AND THE FUTURE OF IP LAW It is sometimes said that much of what could be achieved by human rights in IP law will be neutralized by the fact that IP rights themselves have been promoted to the rank of human rights. This has thus recently been lamented passionately by Ruth Okediji (2018). In this writer's view, this fear seems exaggerated. Most IP rights are held by companies, that is, juristic persons. The CESCR, in its General Comment No. 17, in which it analyses the right of everyone “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author,”as laid down in art. 15(1)(c) of the ICESCR, makes it clear that this right can be held by natural persons or groups of natural persons as creators only (CESCR General Comment No. 17, 2006, para. 7). The IP claims of natural persons or groups of natural persons attain human rights status to the extent that they relate to works that can be considered expressions of creative urges and skills intimately bound up with the human dignity and personality of the creator or creators. Juristic persons—and this includes all publishing companies—are neither natural persons nor “creators”in this sense. Regarding the latter point, their IP claims are either only acquired from natural persons (the companies being mere “holders”of copyright), alternatively, if their IP claims flow from works that are self‐generated, these claims are not (as they cannot be) rooted in human dignity. The rights of juristic persons are, therefore, not protected under art. 15(1)(c). The Committee draws express attention to this truth (para. 7). In addition, authors' rights as human rights are subject to an important definitional limitation that clearly distinguishes them from typical IP rights: They only give rise to a claim to such protection of material interests as is necessary to enjoy an adequate standard of living (para. 15). This implies a fairly modest level of remuneration. As for all human rights, human dignity is the point of reference. Respecting human dignity never requires—in fact, often will demand countering—material extravagance. Alternatively, is it not possible to rely on the right to property in support of strong IP protection? The right to property, while not found in the U.N. Human Rights Covenants, 128 is protected in the various regional human rights treaties. 129 Under the European Convention on Human Rights, claims based on the right to property may even be raised by juristic persons. 130 Yet, two things should constantly be kept in mind in this context: first, property in human rights law is always a socially constricted concept. Secondly, the “fundamental”rights of a company can never be “human”rights, and can, therefore, not rank on a par with actual human rights, such as the right to education. However, these are issues that should be discussed in more detail at a future point. BEITER | 253 This said, it should be noted that the right to education may be subjected to limitations, also those resulting from copyright law. However, for this to succeed, the strict requirements of a limitation clause, such as art. 4 of the ICESCR, need to be complied with. Of the latter, the CESCR emphasizes that it “is primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the State”(CESCR General Comment No. 13, 1999, para. 42). In terms of art. 4, limitations must be “determined by law,”“compatible with the nature of … rights,”and “solelyforthepurposeofpromotingthegeneralwelfareinademocraticsociety.”What is of significance here is that non‐discriminatory access to education is part of the core, the nature of the right to education (Beiter, 2006, p. 458). Therefore, when any copyright law has the effect of denying access to textbooks to disadvantaged students,the limitation will likely not be compatible with the nature of the right to education, and thus fail under art. 4. Ignoring to add the missing dimension of ETOs under IHRL in a globalized world will render human rights largely impotent. As has been stated correctly, “human rights have been locked up behind domestic bars to prevent their universal application to globalization and its much needed regulation. Extraterritorial obligations …unlock human rights” (ETO Consortium). Thus unlocked, human rights can also “civilize”IP law. The ETOs concept, meanwhile, enjoys considerable support among scholars and among members of the U.N. human rights treaty bodies. This Article focused on ETOs under the right to education that could harness copyright and promote access to printed textbooks in schools and universities in developing countries, notably in Africa. The analysis should be deepened and extended to include other fields of IP law in potential conflict with IHRL as well. Future analyses should give consideration to issues that could not be addressed here. It needs to be explained why exactly IHRL prevails over other international law. 131 The consequences for the debate of recognizing a potential basis of some IP claims themselves in human rights law must be examined, and so must be those flowing from the fact that human rights may (sometimes) be subjected to restrictions in terms of limitation clauses. ETOs for each human right need to be defined with precision. It must be explained when noncompliance amounts to a prima facie violation of human rights. Grounds of justification need to be elucidated. Issues of jurisdiction, remedies, relief, and fora of enforcement require further clarification. More than 20 years back, Peter Drahos had provided this advice to developing countries: Given the track record of the United States and the EU, developing countries can expect very few concessions on IP issues in either a bilateral or multilateral context. They will have to look to self‐help on these issues and operate on the assumption that the global IP ratchet will continue to be worked by the United States and the EU in their economic interests, with only minimal consideration being given to the interests of developing countries. (Drahos, 2002, p. 789). Now, almost 25 years later, a form of self‐help promises to be fruitful—therelianceonETOs.TheETOsconcepthas developed to an extent where these obligations should become part of the strategy of developing countries in asserting their development needs globally more forcefully, as a matter of human rights. Developing countries should, separately and jointly, rely on ETOs to legally enforce changes in global IP, including copyright law that protect access to knowledge and textbooks, the right to education, the right to development, and all other human rights. ACKNOWLEDGMENT This article is based on research supported in part by the National Research Foundation of South Africa (Grant Number: 111697). ENDNOTES 1 “Developing countries depend primarily on printed copies of copyrighted works, as opposed to electronic works, for educational purposes. Therefore, the textbook represents the most important source of information”(Isiko Štrba, 2012, p. 202). “In the Global South …bulk hard copies [of learning materials] are required”(Ncube, 2017a, p. 129). 2 The authors rely here on data of the International Telecommunications Union. 254 | BEITER 3 This remains true today. For Sub‐Saharan Africa, see, for example, International Commission on Financing Global Education Opportunity (2016), p. 66 (“In many [Sub‐Saharan African] countries, textbooks are underfunded, priced too high, unavailable to many students, or poorly used”) or UNESCO Global education monitoring report (2016), p. 190 (“In some sub‐Saharan African countries, few primary school students have personal copies of textbooks”). 4 The report refers here to an inventory of reading materials from 11 Sub‐Saharan African countries. 5 The author mentions these and other reasons for the lack of access to textbooks in Sub‐Saharan African countries. 6 Various publications have addressed the conflict between copyright and access, or the right, to education in the past. In lieu of many sources, see, for example, Bannerman (2016, pp. 53–79), Chon (2007), Dutfield and Suthersanen (2008, pp. 282–298), Foster (2015), Helfer and Austin (2011, pp. 316–363), Ramcharan (2013, pp. 65–71), Staudinger (2015), and Story (2002). 7 TRIPS, Part II, Section 1(Copyright and Related Rights), art. 9(1). 8 Berne Convention, art. 8 (author's exclusive right of translation), art. 9(1) (author's exclusive right of reproduction). 9 See also Story (2003), p. 799 (“Copyright problems take a clear second or third place as an access hurdle. Nevertheless, copyright definitely creates a further barrier to access”). Specifically, in addressing higher education, see Commission on Intellectual Property Rights (2003), p. 103 (“Copyright is not the only issue …but high prices of books and materials … are still important parts of a worsening crisis”). 10 On the Maastricht Principles, see note 65. Both WIPO and the WTO as such would thus be required to obey human rights obligations that are binding on them under customary international law or that form part of the general principles of law recognized by civilized nations. Moreover, while the WTO is not a U.N. specialized agency, WIPO is. As such, it has an obligation to obey the principles of the U.N. Charter, one of these being respect for human rights as provided for in art. 1(3) of the Charter. U.N. Charter, art. 1(3). 11 Elsewhere, this author elaborates on the notion of “civilizing”IP, specifically copyright law, by relying on the concept of the “constitutionalization”of IP law “from below.”This links the ETOs framework to de facto hierarchies in, and the decentralized enforcement of, international law. See Beiter (in press), Section VIII. The article also expands on the individual ETOs identified in Section 7of this article. On hierarchies in international law, and their frequent association with human rights, see also Beiter (2016, pp. 470–475) and all the sources cited there. 12 For a discussion of the topic of ETOs in relation to international IP law, specifically TRIPS, see Beiter (2016). This is the first, and it seems only, explicit discussion so far of this topic. There is an interesting book chapter by Ruth L. Okediji addressing the responsibility of the WTO, that of host and home states of corporations for these corporations' conduct, and that of corporations themselves. The source of obligations is, however, it seems, seen essentially in the goals and objectives of TRIPS itself. Okediji (2007). For a wider analysis of ETOs arising under the right to education, see Beiter (2017). 13 See Helfer and Austin (2011, pp. 318–319), who discuss differences between the terms “textbooks”and “learning materials.” 14 This is a standard assumption of IP law. “Modern economic arguments …assume that the motivation toward creativity will be strengthened through the use of property rights in abstract objects and weakened by their absence” (Drahos, 1996, p. 27). Specifically as regards copyright law, however, empirical evidence does not conclusively prove this point (Sprigman, 2018). 15 On “remuneration‐based L&Es,”see specifically Point 8 in Section 7.2.“Remuneration‐based L&Es”are sometimes also termed “statutory licenses,”with (ordinarily) statutory law granting “automatic”authorization to use a work against remuneration in these cases. 16 On “compulsory licenses,”see the discussion of the Appendix to the Berne Convention in Section 4and further the aspects raised in Point 6 in Section 7.2 and Point 16 in Section 7.4. 17 See the description of the three‐step test of copyright law, as embodying these circumscribed circumstances, further below in this section. 18 The making of quotations must be “compatible with fair practice”and “their extent [must] not exceed that justified by the purpose,”Berne Convention, art. 10(1). The source and the name of the author are to be mentioned, art. 10(3). 19 Hence, to cite the provision as a whole: states parties may “permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice,”Berne Convention, art. 10(2). Again, the source and the name of the author are to be mentioned, art. 10(3). 20 Ricketson and Ginsburg (2006) thus state that the words “by way of illustration”“would not exclude the use of the whole of a work in appropriate circumstances,”mentioning the example of a short literary work, such as a poem or short story (para. 13.45). BEITER | 255 De Schutter, O. (2011, December 19). Report of the Special Rapporteur on the Right to Food: Addendum: Guiding principles on human rights impact assessments of trade and investment agreements (U.N. Doc. A/HRC/19/59/Add.5). 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He teaches Socio‐Economic Rights, Intellectual Property Law, and International Social Justice at North‐West University. How to cite this article: Beiter KD. Extraterritorial human rights obligations to “civilize”intellectual property law: Access to textbooks in Africa, copyright, and the right to education. J World Intellect Prop. 2020;23:232–266. https://doi.org/10.1111/jwip.12150 266 | BEITER