Fairness, Morality and Ordre Public in Intellectual Property
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Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Chapter 5: Access to textbooks in developing countries, copyright, and the right to education: embracing extraterritorial state obligations in intellectual property law

Klaus D. Beiter

Abstract

Bulk hard copies of textbooks are crucial to satisfy education needs in developing countries. The right to education of international human rights law (IHRL) requires states to ensure that learning materials are available, accessible, and acceptable. The reality, however, is that in many developing countries textbooks are unavailable, too expensive, or not available in local languages. While the easy (translation and) reproduction of textbooks could be a solution, the complex regulations of current copyright law make this difficult or impossible and also significantly add to costs. The notion of extraterritorial state obligations (ETOs) under IHRL – the idea that states hold obligations, in appropriate circumstances, to observe the human rights of those beyond their borders – has been enjoying increasing support. ETOs could assume a key function in ‘civilising’ intellectual property (IP) law. This chapter explores the relevance of the ETOs concept for IP law. It does so by identifying potential ETOs flowing from the right to education under IHRL that could require international copyright law to be adapted in a way that facilitates access to textbooks in schools and universities. The discussion draws on the 2011 expert Maastricht Principles on ETOs and is developed around the well-known typology in terms of which all human rights entail duties to respect, protect, and fulfil human rights. While access to printed textbooks in developing countries generally is addressed, it was especially the textbook situation in Africa that inspired this research.

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