Institutional and normative considerations for copyright and access to education in developing countries: rethinking incremental solutions through limitations and exceptions

Abstract

This article considers both national and multilateral approaches to facilitate access to copyrighted materials for educational purposes in developing countries. It emphasizes the need for both normative re-ordering and institutional reform. In case of normative re-ordering, the article highlights the role that national institutions like courts, in addition to legislators, might play in crafting case-by-case educational exceptions. However, it argues that limitations and exceptions in themselves are insufficient doctrinal mechanisms on which to place the sole burden of facilitating effective access to educational materials. At the international level, the article proposes an approach that goes beyond the current emphasis on limitations and exceptions. Such an approach should evolve within the international intellectual property (IP) system and its affiliated institutions like WIPO and the WTO. The failure of attempts to provide normative solutions for access to other public goods such as public health or climate-related technologies, strongly suggests that institutional reform and normative re-ordering must be simultaneously pursued in the international arena. The article suggests that in the area of copyright and access to education, WIPO is the best institution to lead in devising multilateral solutions. However, it should minimize its emphasis on treaty making and instead place more emphasis on quasi-legal and non-legal mechanisms. The article evaluates recent institutional and normative reforms in WIPO, including the Development Agenda and the activities of the Standing Committee on Copyright and Related Rights, as a structural basis for creating a platform for a new approach to access to public goods governed by the international copyright system.