Is the Employed Scholar Free not to Publish? Limitations of Disclosure Rights in a Comparative Perspective

Abstract

The control of works produced by academics in the course of their employment is a controversial issue. This paper examines the protection offered to employed scholars who do not want to publish their work because of the fear that premature dissemination would damage their academic reputation. The right not to publish of employed scholars has been analyzed considering Anglo-American copyright law on the one hand, and French legislation on the other. Irrespective of the differences between these jurisdictions, both positions allow labour conditions to restrict the right not to publish. On top of the comparison of three legal systems, this paper investigates the question of whether the limitations on the right of disclosure conflict with article 15, paragraph 1 c of the International Covenant on Economic, Social and Cultural Rights ICESCR. Both Anglo-American and French copyright law are not fully consistent with the protection of moral interests offered by the ICESCR. The reason is that it depends on the labour conditions whether there exists any obligation on academic employees to publish. In the absence of this obligation, the employed scholar enjoys the freedom to decide not to publish. ICESCR does not allow these limitations of disclosure rights since article 15, paragraph 1 c does not refer to working conditions.