The Right to Research in Africa: Exploring the Copyright and Human Rights Interface 3031332814, 9783031332814

Table of contents :
Foreword
Preface
Acknowledgement
Contents
Chapter 1: The Right to Research in Africa: An Overview of the Context and Issues for Consideration
1.1 Introduction: Research Context
1.2 Research Objective and Questions
1.3 Research Methodology
1.4 Structure of the Book
References
Chapter 2: Research and the Copyright Challenge to Access to Information in Africa
2.1 Introduction
2.2 Meaning of Research and Its State and Relevance in Africa
2.3 African Copyright System and Human Right
2.3.1 Challenge of Access to Information
2.3.2 Reasons for the Access to Information Challenge in Africa
2.4 Interface Between Copyright and Human Right
2.5 Conclusion
References
Chapter 3: Distilling the Right to Research from International and Regional Human Rights Frameworks
3.1 Introduction
3.2 The Rights to Science and Culture
3.3 The Right to Property
3.4 The Right to Freedom of Expression
3.5 The Right to Education
3.6 Conclusion
References
Chapter 4: Sampling the Right to Research in National Constitutions and Bills of Rights in Africa
4.1 Introduction
4.2 The Right to Science and Culture
4.3 The Right to Property
4.4 The Right to Freedom of Expression
4.5 The Right to Education
4.6 Conclusion
References
Chapter 5: The Right to Research: Is It Necessary and Justifiable in the African Context?
5.1 Introduction
5.2 Is a Specific Right to Research in Africa Necessary?
5.3 Constructing the Human Right to Research in Africa
5.3.1 Normative Scope and Content of the Right to Research
5.3.2 Core Obligations of the Right to Research
5.4 Conclusion
References

Citation preview

SpringerBriefs in Law Desmond Oriakhogba

The Right to Research in Africa Exploring the Copyright and Human Rights Interface

SpringerBriefs in Law

SpringerBriefs present concise summaries of cutting-edge research and practical applications across a wide spectrum of fields. Featuring compact volumes of 50 to 125 pages, the series covers a range of content from professional to academic. Typical topics might include: • A timely report of state-of-the art analytical techniques • A bridge between new research results, as published in journal articles, and a contextual literature review • A snapshot of a hot or emerging topic • A presentation of core concepts that students must understand in order to make independent contributions SpringerBriefs in Law showcase emerging theory, empirical research, and practical application in Law from a global author community. SpringerBriefs are characterized by fast, global electronic dissemination, standard publishing contracts, standardized manuscript preparation and formatting guidelines, and expedited production schedules.

Desmond Oriakhogba

The Right to Research in Africa Exploring the Copyright and Human Rights Interface

Desmond Oriakhogba Department of Private Law, Faculty of Law University of the Western Cape Cape Town, South Africa

ISSN 2192-855X     ISSN 2192-8568 (electronic) SpringerBriefs in Law ISBN 978-3-031-33281-4    ISBN 978-3-031-33282-1 (eBook) https://doi.org/10.1007/978-3-031-33282-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To the evergreen memory of my parents—Mr Johnbull Oriakhogba Iyere and Mrs Roseline Iyere—and my sister, Mrs Violet Onakpoma.

Foreword

In search of a legal framework for the right to research, Oriakhogba’s book clearly, pedagogically, and sufficiently addresses two manifestations of the tensions that cross the problem of contemporary inequality: first, that of the rights of the owner versus the rights of the citizens and, second, that of the aging dogmatic structures of intellectual property rights versus the emerging claims for the protection of human rights. The protection or guarantee of human rights often encounters obstacles in intellectual property law. Oriakhogba’s book is an effort to update the necessary balance between intellectual property and the public interest, the demand for which is particularly urgent in our countries of the global South, precisely as a condition for our peoples to access many fundamental rights. Oriakhogba’s book develops a lucid effort to properly ground the right to research in human rights law, as a way of balancing the African copyright ecosystem. The main argumentative path adopted to this end consists of inscribing the right to research as part of the right to freedom of expression, insofar as its exercise requires one of the elements recognised for it in all normative human rights texts, namely, the right of access to information. The importance of this right has become critical since the COVID-19 pandemic, to the extent that both the right to access the products of research and, generally, those of knowledge, have become dependent on digital tools. The difficulties and obstacles faced by researchers and generally by users of libraries and sources of knowledge, to make their rights to education, culture and science effective have become notorious. Many of these difficulties are attributable to copyright regimes, which have fallen short of guaranteeing the human rights of users, due to the imbalance between the rights of access to information for research and the rights of copyright holders. This difficulty is generally addressed in African copyright regimes by recourse to generally formulated limitations and exceptions or by the fair use provision. However, Oriakhogba considers that this approach is not sufficient, for example, in the case of text and data mining, which is necessary in research, but neither is it sufficient to enable other rights that depend on access. Thus, he argues that the most effective approach to balance the copyright system and the public interest is to find vii

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and build a human right to research, either within the framework of the existing and recognised right to freedom of expression, in its connotation of the right of access to information, or also as part of the right to science and culture, and the right to education. Through an exercise of systematic review of relevant human rights treaties, as well as regional and some African countries’ constitutional and human right regimes, Oriakhogba proposes the construction of the right to research as a human right. I will refer to what I consider to be the central issue in the method he adopts to substantiate the right to research as a human right: Undoubtedly, the problem lies in the imbalance between the legal guarantees that cover the holders in intellectual property regimes versus the rights of users, autonomous or enabling for access to other rights. This is, in my opinion, a well-known tension between the rights of the owner and the rights of the citizen, which is, by the way, an original and historical tension in the construction of legal regimes, insofar as, particularly until the first half of the twentieth century, property rights were privileged without major dispute as the centre of the construction of legal institutionality. This is precisely the historical gap in protection that currently has us discussing whether the rights of access to knowledge or the right to education should have the same rank of constitutional and legal protection as the rights derived from the temporary privileges provided by legislations under the name of intellectual property. Oriakhogba forcefully points out that ‘human rights considerations did not play a role in the development of copyright laws in the Global North, and in the formulation of international copyright regime until fairly recently. Thus, while the human rights instruments were strictly concerned with civil, political, economic, social and cultural rights forming the core of the human rights domain, the copyright treaties were focused on the interest of creators and investors within the context of international trade, investment and the global creative industry. Although the UDHR and ICESCR accommodate copyright within their ambit, the normative focus is not the trade and investment aspects of copyright. Rather, the concern of the global human rights system is the guarantee of the moral and material interest in the creative output flowing from the creative genius of authors’. Undoubtedly, the imbalance is historical and, moreover, structural. Any intervention aimed at mitigating the effects of an intellectual property regime institutionally built within the political-legal framework of proprietary individualism, with all the guarantees and sanction regimes, is cosmetic. Of course, this statement is mine, not Oriakhogba’s, although I was inspired by reading his text. For those of us who were legally educated and work in the family law systems of civil law, the historical construction of this legal model privileged the rights of the owner over the rights of citizens, for over 200 years. Both public and private law institutions were structurally designed and developed for this purpose. The protection of citizens’ rights was confined to procedural channels that always led to protection statutes that referred to instruments whose main purpose revolved around the guarantee of property. In the countries of the Global South, it was only half a century ago that we began to consider a legal institutionality designed from human rights, human rights by

Foreword

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design, human rights from the design of the system of rights, with the guarantees and the procedures to protect them. A large part of the constitutional transformations was aimed, precisely, at providing human rights with a contentious status that would allow for their autonomous judicial claim. It is therefore not surprising, in Oriakhogba’s reconstruction, that the declaration of rights enshrined in the fourth chapter of the Federal Constitution of Nigeria of 1999 does not contain the rights to education, science and culture, as provided for in the Universal Declaration of Human Rights or the International Covenant on Economic, Social and Cultural Rights. Instead, the constitution only mentions these as fundamental objectives and guiding principles of state policy, which, consequently, does not make them directly justiciable; citizens lack judicial channels to claim these rights directly before the courts. Neither does the Sierra Leone Bill of Rights. This is what happened in my country, Colombia, until the constitutional change of 1991. In contrast, the Nigerian Charter does specifically recognise the right to property, as did the Constitution of my country very explicitly before 1991. I do not want to close my foreword on Oriakhogba’s interesting and provocative book without presenting two short reflections that arise from his reading: The first has to do with the construction of intellectual property regimes in the Global South as an extension or as a manifestation of the colonial exercise. Oriakhogba reminds us that ‘Copyright laws, both internationally and nationally, were developed and extended to African countries by the Global North that exercised colonial power in Africa at that time. Indeed, the states from the Global North continue to exert enormous influence on copyright law reform efforts in Africa, with the aim of maintaining their status quo on the continent for the benefit of the interests of large corporate interests from the Global North. Such influence manifests in the form of threats of trade sanctions or cutting aid’ to African countries. This leads me to emphasise the vindication of this right to research as a right that has suffered a historical deficit of protection, and which is fundamental for the development and guarantee of other rights, particularly in the Global South. The second question has to do with the reaffirmation of the superiority that must be predicated—at least in our inequitable contexts of the Global South—of human rights, of the rights of access to knowledge, to culture, of the right to education, over the right to property. We must be aware that rebalancing the public interest with intellectual property requires confronting the rights of holders that had not been disputed, from the legitimate claims of most human beings excluded from its benefits. Center for Internet and Society, Julio Gaitán Bohórquez Universidad del Rosario (ISUR)  Bogotá, Colombia

Preface

This book offers an in-depth examination of the international and regional human rights instruments to which African countries have subscribed, as well as those relevant to the African context, and the national bills of rights and constitutions in Africa with the aim of constructing an explicit right to research in Africa. The imbalance existing within the African copyright ecosystem on access to information for research and education became more prominent during the COVID-19 pandemic. As teaching, learning and research via digital and virtual learning platforms have inevitably become a global reality, learners and researchers, especially in Africa, continue to grapple with the challenges of accessing information owing largely to the protection of teaching and learning materials under copyright law. Indeed, access to information, which is necessary to actualise the right to science and culture, including authorial rights, the right to education, freedom of expression, and the right to property, continues to face a significant challenge by the exercise of copyright without a legal mechanism that properly balances copyright with aforementioned human rights in Africa. To create the balance, therefore, there is a dire need for the recalibration of the African copyright system from the perspective of human rights law. Can the balance be achieved through the construction of an explicit right to research or will reliance on the protected rights to science and culture, freedom of expression, the right to education, and the right property sufficient? What are the context realities in Africa that justifies the formulation of an explicit right to research in Africa? Are there existing international and national regimes to support the formulation of an explicit right to research in Africa? Based on a desk review of relevant primary and secondary sources, the book unpacks and addresses these issues. The book advances the argument that the right to research is implicit in the rights to science and culture, especially when viewed from the perspectives of scientific research alone. However, research is not limited to scientific research and cultural activities. It includes other unorganised, every-­ day, kinds of research that are important to fulfil and promote the right to freedom of expression, rights to science and culture, right to education, and right to property. The core contents and obligations imposed by the right to science appears relevant mainly within the context of scientific research and cultural participation, and xi

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Preface

address the access to information issues for researchers, educators and libraries within those contexts. However, the right to science places an obligation on states to strike appropriate balance between the concerns of the public to access the information embedded in copyright works, and the interest of authors to benefit from the products of their creativity. States have sought to achieve this balance through the limitations and exceptions provided by national copyright regimes. This book shows that this approach has over time proven ineffective to resolve the challenge that copyright poses to access to information. Also, the right to science and culture is broad and cannot match the specific protection that copyright enjoys under copyright and human rights law; and, as such, cannot address the concerns of researchers, educations and libraries as users of copyright works. Therefore, an explicit right to research is needed to specifically address the copyright challenges to access to information in the African context. No doubt, the broad rights to science and culture, including the rights to freedom of expression, education, and property, can form useful guides in developing the explicit right to research. The book will be an important resource to law and policy formulators in the field of copyright and human rights, judges, lawyers, copyright public interest groups, researchers and students, librarians, authors, as well as the general public. Cape Town, South Africa  Desmond Oriakhogba

Acknowledgement

I acknowledge the greatness of the Almighty God, who is forever my strength, shield and fountain of knowledge. I am grateful for the unflinching support of the women in my life: Elizabeth, Olivia and Kayla Oriakhogba. I am also grateful for the support of my siblings and family members. This book was developed from the study conducted as part of the American University Washington College of Law’s (AUWCL) Program on Information Justice and Intellectual Property’s (PIJIP) Project on the Right to Research in International Copyright supported by Arcadia, a Charitable Fund of Lisbet Rausing and Peter Baldwin. Many thanks to Professor Sean Flynn and Dr Michael Palmedo for the opportunity. I acknowledge the helpful comments and feedback from Professor Caroline Ncube (my Academic Mother), Professor Alan Rocha de Souza, Professor Julio Cesar Gaitan Bohorquez (who also wrote the foreword to this book), Dr Sanya Samtani, Dr Andrew Rens, and participants at the Annual Meeting of the Global Network on Copyright User Rights: The Right to Research in International Law and the American University International Law Review (AUILR) Symposium on the Right to Research, which held on 20–22 April 2022. I am grateful to Professor Ademola Jegede, Dr Chijioke Okorie, and Dr Sogo Olofinbiyi for their valuable contribution through discussion of some knotty issues flowing from my study. Thanks to Laura Hofmann (Springer) for her support throughout the publishing process; and the anonymous reviewers of the manuscript for their contribution to the quality of the book. The book is also based on research supported in part by the Dean’s discretionary grant, Faculty of Management, Commerce and Law, University of Venda (UNIVEN). Many thanks to Prof Modimowabarwa Kanyane (Dean), and Prof Lonias Ndlovu (Interim Director, School of Law, UNIVEN) for the support. I take responsibility for all errors, omissions and the views expressed in the work.

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Contents

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The Right to Research in Africa: An Overview of the Context and Issues for Consideration������������������������������������������������������������������    1 1.1 Introduction: Research Context��������������������������������������������������������    1 1.2 Research Objective and Questions����������������������������������������������������    6 1.3 Research Methodology ��������������������������������������������������������������������    8 1.4 Structure of the Book������������������������������������������������������������������������    9 References��������������������������������������������������������������������������������������������������   10

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Research and the Copyright Challenge to Access to Information in Africa����������������������������������������������������������������������������������������������������   15 2.1 Introduction��������������������������������������������������������������������������������������   15 2.2 Meaning of Research and Its State and Relevance in Africa������������   17 2.3 African Copyright System and Human Right����������������������������������   23 2.3.1 Challenge of Access to Information��������������������������������������   23 2.3.2 Reasons for the Access to Information Challenge in Africa ��������������������������������������������������������������   25 2.4 Interface Between Copyright and Human Right������������������������������   30 2.5 Conclusion����������������������������������������������������������������������������������������   33 References��������������������������������������������������������������������������������������������������   34

3

Distilling the Right to Research from International and Regional Human Rights Frameworks��������������������������������������������������������������������   39 3.1 Introduction��������������������������������������������������������������������������������������   39 3.2 The Rights to Science and Culture����������������������������������������������������   41 3.3 The Right to Property������������������������������������������������������������������������   51 3.4 The Right to Freedom of Expression������������������������������������������������   56 3.5 The Right to Education ��������������������������������������������������������������������   59 3.6 Conclusion����������������������������������������������������������������������������������������   62 References��������������������������������������������������������������������������������������������������   64

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Sampling the Right to Research in National Constitutions and Bills of Rights in Africa��������������������������������������������������������������������   69 4.1 Introduction��������������������������������������������������������������������������������������   69 4.2 The Right to Science and Culture ����������������������������������������������������   70 4.3 The Right to Property������������������������������������������������������������������������   79 4.4 The Right to Freedom of Expression������������������������������������������������   83 4.5 The Right to Education ��������������������������������������������������������������������   87 4.6 Conclusion����������������������������������������������������������������������������������������   90 References��������������������������������������������������������������������������������������������������   91

5

The Right to Research: Is It Necessary and Justifiable in the African Context?��������������������������������������������������������������������������������������   93 5.1 Introduction��������������������������������������������������������������������������������������   93 5.2 Is a Specific Right to Research in Africa Necessary? ����������������������   93 5.3 Constructing the Human Right to Research in Africa����������������������  101 5.3.1 Normative Scope and Content of the Right to Research��������  101 5.3.2 Core Obligations of the Right to Research ��������������������������  103 5.4 Conclusion����������������������������������������������������������������������������������������  104 References��������������������������������������������������������������������������������������������������  104

Chapter 1

The Right to Research in Africa: An Overview of the Context and Issues for Consideration

1.1 Introduction: Research Context1 In his seminal work on the right to research, Appadurai acknowledged that globalisation has made knowledge an important and valuable currency for industrialisation, the development of educated and informed citizenry, national economic survival, and individual economic security. The author also asserts that research is an important means for acquiring knowledge, and for research to be effective, researchers and educators must have adequate access to information. Furthermore, Appadurai argues that, because of its value, rich and poor countries are in hot pursuit to acquire and control knowledge. Unfortunately, while Global North countries are far ahead in the pursuit of knowledge and have developed policies to continue to control the knowledge economy, Global South countries lag far behind in the race and their citizens continue to face barriers to access to information.2 Knowledge governance framework, such as intellectual property law (including copyright law) is one of the policy tools developed by Global North countries to own and control the knowledge economy. Little wonders, therefore, Global North countries continue to top and control the research and innovation ecosystem, while Global South countries, especially in Africa, maintain the lower rung of the ladder, as empirical evidence shows.3 Thus, there is a need for Global South countries, especially those in Africa, to develop legal mechanisms that will promote access to information for research and education and develop their knowledge stock. Appadurai’s work is important because it identifies the right to research as an important mechanism to overcome the barriers of access to information. Indeed, it

 The book builds upon and expands Oriakhogba (2022).  Appadurai (2006). 3  Dutta et al. (2022); Duermeijer et al. (2018). 1 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Oriakhogba, The Right to Research in Africa, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-33282-1_1

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has shaped further work, especially in the area of citizens and participatory science.4 However, the work neither viewed the right to research and the related copyright issues, nor did it situate the right to research in the African context. Also, Appadurai’s work did not discuss what the nature or content of the right to research should be. The importance of the right to research within the context of copyright law and policy, especially as they interface with human rights jurisprudence, is currently attracting academic attention. Beiter is addressing it broadly within the context of the right to enjoy the benefit of scientific progress and its application under international human rights law.5 Geiger and Jutte are conceptualising the right to research within the European context.6 As discussed further below, this book focuses on the African context with the aim of constructing a right to research that will match the rights of authors protected under copyright and human rights laws. The state of the global knowledge economy described by Appadurai manifested during the COVID-19 pandemic. There is evidence of how African countries were left far behind in the research race for the development of vaccines to fight the COVID-19 virus. 7 Indeed, experiences during the pandemic reinforced the need for a legal mechanism that will promote and support access to information for research and education8 and enhance the work of researchers, libraries, and archives in Africa. Teaching, learning and research were inevitably being conducted using information communication technology (ICT) tools, including virtual learning platforms. However, teachers, learners and researchers continued to grapple with the challenges of accessing materials owing largely to the protection of these resources under copyright law.9 Libraries and archives, which were supposed to facilitate access to these materials, were constrained by the fact that they were accustomed to rendering physical services. They were not ready to adapt to digital services as required by the reality thrown up by the pandemic. This was made worse by the difficulty in accessing funds to obtain digital copyright licenses for online repositories from publishers, and the refusal of publishers to grant copyright licenses in some cases.10 Researchers in, and those deploying, emerging technologies, such as artificial intelligence (AI), especially in the education sector, have to cross the hurdles of copyright exclusivity in their quest for knowledge creation in the digital space. This

 Albagli and Iwama (2022); Reed and Schenck (2023).  Beiter (2022). 6  Geiger and Jutte (2022b). 7  See Gavi (2022); Health-e News (2021). 8  Access to information is a human right forming part of freedom of expression protected under Article 9 of the African Charter on Human and Peoples Rights, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (ACHPR); Article 19 of the Universal Declaration of Human Rights, United Nations, 1948, Art. 21.3 (UDHR); and Article 19 of the International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (ICCPR). Education is also a human right recognised under Article 17(1) ACHPR, Article 26 UDHR, and Article 13 of the International Covenant on Economic Social and Cultural Rights, 1966, 993 UNTS 3 (ICESCR). 9  Ncube (2020); Afro-IP (2020); EdTech Hub & eLearning Africa (2020). 10  Electronic Information for Libraries (2022); Shirley et al. (2020), pp. 201–208; IFLA (2020). 4 5

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is so because AI research, for instance, would often involve the procurement of text and data (text and data mining), across borders, that may be the subject of copyright protection.11 The implication of the forgoing is that the right of researchers to access information faces a significant challenge posed by the exercise of exclusive rights by copyright owners under copyright law without a legal mechanism that equitably balances copyright, from a human right perspective, with the right of researchers to access to information in the African context.12 This is so, notwithstanding the importance of access to information to the fulfilment and promotion of the rights to science and culture,13 right to education, and freedom of expression. Reliance on, and working within, the limitations and exceptions (L&Es) provided by the existing national copyright regimes are often touted, by the proponents of stronger copyright regimes, as the solution to this malaise. Flowing from their incentivisation-centric disposition, the proponents of strong copyright argue that the existing L&Es are capable of promoting the public interest objective of copyright law.14 Indeed, this argument also serves as a basis for their resistance against attempts aimed at making international and African copyright regimes more balanced.15 The same attitude informed the initial blockade, by Global North countries, of the originally proposed waiver of the World Trade Organizations’ (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPs Agreement)16 to tackle the challenges of the COVID-19 pandemic.17 The attitude made the proponents of strong copyright bully countries that presented the initial proposal to succumb to the eventual ministerial decision on the TRIPs Agreement (TRIPs waiver),18 and declaration on the WTO response to the COVID-19 pandemic,19 which were made in June 2022.20 Specifically, the decision on the TRIPs Agreement (TRIPs waiver) has  Flynn et al. (2020); Sag (2019), p. 164; Manteghi (2021), pp. 698–701.  Hirko (2020, 2021b); Ncube (2017b), pp. 117–143; Beiter (2021). 13  Farida Shaheed (2014). 14  Generally, see Tang (2010); Turkewitz (2015). 15  For an example of the role played by Global North countries in conversations around the formulation of international norms for Limitations and exceptions, see Oriakhogba and Kawooya (2022). The South African copyright law reform experience is a living and classic example of the interference of Global North countries in copyright reform efforts in Africa. See Kayali (2020); für Freiheitsrechte (2020). 16  Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299 (1994) (TRIPS Agreement). 17  dos Santos et al. (2022); Thembisetty et al. (2022); Thembisetty (2021). 18  Ministerial Decision on the TRIPS Agreement (WT/MIN(22)/W/15/Rev.2, 17 June 2022). https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN22/W15R2. pdf&Open=True (accessed on 18 June 2022). 19  Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Future Pandemics (WT/MIN(22)/W/13, 10 June 2022). https://docs.wto.org/dol2fe/Pages/SS/directdoc. aspx?filename=q:/WT/MIN22/W13.pdf&Open=True (accessed on 18 June 2022). 20  WTO (2022). 11 12

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been regarded as far less than expected.21 It only relates to vaccines and does not extend to the production and supply of COVID-19 diagnostics and therapeutics. Even for the vaccines, it allows production for exports to eligible member states defined as developing countries without production capacity. Those with production capacity are discouraged from taking advantage of the decision. Even so, the decision does not allow re-exportation. Moreover, the decision only relates to patents. It does not address access to information issues from the copyright context. Overall, the decision leans heavily in favour of private economic interest as against the public interest. In its most simplistic connotation, the public interest objective of copyright is the pursuit of an equitably balanced system that caters equally for the private interests of copyright owners (including authors and corporate investors in the copyright industry) and the concern of the public in promoting science, creativity and culture.22 As a plethora of research already reveal,23 existing copyright regimes, both national and regional, in Africa, as currently formulated, are not fit for purpose and cannot secure the public interest. This is because the copyright regimes are incapable of supporting the work of researchers, libraries and archives that contribute to the promotion of access to information, especially in this era of AI research and the digitisation of teaching and learning. Majority of African national copyright regimes contain restrictive general exceptions, such as fair dealing, and very narrow specific research exceptions, with none dealing with text and data mining.24 Hence there has been calls for,25 and even judicial attempts at,26 the reading of the copyright rules through a human rights lens. In this regard, experts have advocated specifically for the formulation of user rights within the copyright system through the reading of the existing restrictive L&Es in African copyright regimes with human rights and constitutional binoculars. This is to position the African copyright system to effectively achieve its public interest objectives.27 There are also clamour for the recalibration of the copyright system from a human right law perspective,28 especially within the African context.29 Even so, a more effective approach at recalibrating the copyright system in the public  Zarocostas (2022), p. 1292; Oke (2022); Shabalala (2022).  Okediji (2006), pp. 1–52; Giblin and Weatherall (2016), pp. 66–78; Ncube (2017a), pp. 253–280; Sun (2019), p. 123; Mason (1998), p. 7; Nwauche (2008). 23  For instance, see Hirko (2021a), pp. 263–287; Hirko (2020, 2021b); Strba (2012); Armstrong et al. (2010). 24  Generally, see Flynn et al. (2022); Band and Gerafi (2015). 25  Helfer and Austin (2011), pp. 316–363; Ncube (2017a, b); Beiter (2021). 26  For instance, see Moneyweb (Pty) Limited v Media 24 Limited and Another (31575/2013) [2016] ZAGPJHC 81 (South Africa); Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (Kenya); Katatumba v Anti-Corruption Coalition Uganda (CIVIL SUIT NO 307 OF 2011) [2014] UGCOMMC 107 (18 August 2014) (Uganda). 27  For instance, see Hirko (2020, 2021b). 28  Farida Shaheed (2012) para 65. 29  Ncube (2017a). 21 22

1.1  Introduction: Research Context

5

interest is to construct a human right to research as an explicit right carved out of the rights to freedom of expression, right to access information, right to science and culture, right to education, and right to property,30 especially within the African context. The book contends that the right to research is implicit in the rights to science and culture, especially when viewed from the perspectives of scientific research alone. However, research is not limited to scientific research and cultural activities. It includes other unorganised, every day, kinds of research that are important to fulfil and promote the right to freedom of expression, rights to science and culture, right to education, and right to property. Research conducted, for instance, just to understand the way of life of a particular community that the researcher intends to live in or research undertaken by researchers to be acquainted with their rights and obligations within a given democratic entity can be regarded as unorganised, every day, kind of research. Other examples, given by Appadurai, include a ‘journalist trying to find out about an earthquake in a nearby town, a hotel manager seeking to make better use of the internet to facilitate bookings, a patient checking to see whether his or her medication is the cheapest or best one available for their condition, [and] a student seeking to know whether a certain school or college is best for him or her.’ 31 The goal of such research is not the creation of new knowledge, as in the case of scientific research. Rather, unorganised, every day, kind of research is simply for the purpose of knowing. 32 The core contents and obligations imposed by the right to science appears relevant mainly within the context of scientific research and cultural participation, and address the access to information issues for researchers, educators and libraries within those contexts. However, the right places an obligation on states to strike appropriate balance between the concerns of the public to access the information embedded in copyright works, and the interest of authors to benefit from the products of their creativity. States have sought to achieve this balance through the limitations and exceptions provided by national copyright regimes. This book shows that this approach has over time proven ineffective to resolve the challenge that copyright poses to access to information. Also, the right to science and culture is broad and cannot match the specific protection that copyright enjoys under copyright and human rights law; and, as such, cannot address the concerns of researchers, educations and libraries as users of copyright works. Therefore, an explicit right to research is needed to specifically address the copyright challenges to access to information in the African context. No doubt, the broad rights to science and culture, including the rights to freedom of expression, education, and property, can form useful guides in developing the explicit right to research.

 Geiger and Jutte (2022a); Geiger (2019).  Appadurai (2006), p. 176. 32  Ibid. 30 31

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1.2 Research Objective and Questions The book aims to construct an explicit right to research, from a user rights perspective, that will match the existing rights of authors in the copyright and human rights regimes in Africa. Within the context of this work, African human rights regime is understood broadly to include, primarily, the African Charter on Human and Peoples’ Rights (ACHPR), as well as other international human rights instruments to which most African countries are subscribed, and from which inspiration and guidance can be drawn when interpreting the ACHPR.33 Table  1.1 shows the endorsement by African Countries of the relevant international human rights instruments such as, the International Covenant on Economic Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR). It should be noted that the book also makes reference to the Universal Declaration of Human Rights (UDHR). All African Countries have subscribed to the UDHR. However, the UDHR is not a human rights treaty per se. It was developed as a non-binding political text to serve as a common global normative standard for the protection and promotion of human rights. Even so, the UDHR has now attained the status of customary international law and has shaped other international legally binding treaties, such as the ACHPR, ICCPR and ICESCR.34 The approach adopted here aligns with Article 31(3)(c) of the Vienna Convention on the Law of Treaties,35 in terms of which rules of international law applicable in the relationship between parties to a treaty can be considered when interpreting that treaty. This provision should also be read together with Articles 60 and 61 of the ACHPR, which allows reliance on other international human rights jurisprudence for the interpretation of its provisions. The African human rights regime is further defined broadly to include the bills of rights in the national constitutions in Africa,36 for reasons that are further discussed in part 1.3 below. The book considers whether an explicit right to research in Africa is necessary and justifiable. This question is addressed in Chap. 5. As a background to the discussion, Chaps. 3 and 4 are focused on, and preoccupied with, examining existing human rights regimes (international, regional and national) and national constitutions to determine whether they support the framing of a right to research in Africa. Here, focus will be on the right to science and culture, right to freedom of expression as well as the right to property, and education, as contained in human rights treaties, national constitutions, soft law, and case law. This is important to ultimately

 For instance, the UDHR, ICESCR, and ICCPR, among others.  Schabas (2021); Hannum (1995/96), pp. 287–396; Simma and Alston (1988), pp. 82–108. 35  Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N. T. S. 331. 36  This work focuses on the national constitutions of Nigeria, Sierra Leone, Ghana, Gambia, Burkina Faso, Malawi, Angola, Zambia, Uganda, Rwanda, Seychelles, Burundi, Chad, Sao Tome and Principe, Algeria, Morocco, Mauritania, South Africa, Zimbabwe, Kenya, Ethiopia, Egypt, Tunisia, Central African Republic and Democratic Republic of Congo. 33 34

1.2  Research Objective and Questions

7

Table 1.1  International human rights treaty adoption by the 55 AU member states AU member state Algeria Angola Benin Botswana Burkina Faso Burundi Cabo Verde Cameroon Central African Republic Chad Comoros Congo Congo DRC Djibouti Egypt Eritrea Equatorial Guinea Eswatini Ethiopia Gabon Gambia Ghana Guinea Guinea Bissau Ivory Coast Kenya Lesotho Liberia Libya Madagascar Malawi Mali Mauritania Mauritius Morocco Mozambique Namibia Niger Nigeria Rwanda Sahrawi Republic Sao Tome and Principe

ACHPR Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yesa Yes Yes Yes Yes Yes Yes Yes

ICESCR Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes No Yes

ICCPR Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes (continued)

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Table 1.1 (continued) AU member state Senegal Seychelles Sierra Leone Somalia South Africa South Sudan Sudan Tanzania Togo Tunisia Uganda Zambia Zimbabwe

ACHPR Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

ICESCR Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes

ICCPR Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes

Morocco adopted the ACHPR in 2022. See Benazizi (2022). However, note that the AU database has not been updated to reflect this fact. See AU List of countries which have signed, ratified/ acceded the ACHPR. https://au.int/sites/default/files/treaties/36390-­sl-­african_charter_on_ human_and_peoples_rights_2.pdf. Accessed on 21 June 2022 a

determine, in Chap. 5, the core components of an explicit right to research and the obligations it imposes, in Africa.

1.3 Research Methodology The book primarily adopts a doctrinal research method. The research is conducted as a desk review of human right treaties, soft law, case law, and relevant literature on the intersection between copyright and human right in relation to the question of access to information for research. Key focus is on the provisions of the ACHPR, and on the global human rights treaties,37 as well as their jurisprudence, as they become relevant to shed lights on the principles enshrined in the ACHPR.38 The aim is to identify and examine the provisions that will be relevant to formulating the human right to research in Africa. The research also involves a survey and sampling of national constitutions in Africa, especially the bills of rights, drawn from countries representative of the African sub-regions. The goal here is to determine the constitutional approaches of the countries on the copyright-human right interface and their alignment with the principles enshrined in the international human right treaties relevant to  The UDHR, ICESCR and ICCPR.  The ACHPR allows reliance to be placed on, or inspiration to be drawn from, the provisions of international human rights instruments, such as the UDHR, ICCPR and ICESCR, which its contracting parties have adopted. See Articles 60 and 61 of the ACHPR. 37 38

1.4  Structure of the Book

9

constructing a human right to research. The countries are selected as samples of African countries since a work of this kind will be too unwieldy if all African countries are examined. In this regard, five countries are drawn from each African subregion of West, South, East, North and Central Africa, of the 55 member states of the African Union (AU).39 Interestingly, some of the countries are currently in the process of reforming their copyright legislations. 40 Issues around developing a balanced copyright framework are at the front burner, and are highly contested in the reform processes, as shown in Chap. 2. Furthermore, a study of the national bills of rights and constitutions in this work reflects the bottom-up tailor-made approach to law and policy formulation, which experts have canvassed for developing regions such as Africa, especially on copyright and access to information issues.41 The study is limited by the number of African countries sampled and the official language of some of the countries, which makes it difficult to access and examine texts and case law from those countries that have not been translated to English language. The English texts of the non-English speaking countries considered were sourced from the Constituteproject.org, which brings together updated and translated versions of national constitutions from around the world to ‘support constitutional design and to inform citizens’.42

1.4 Structure of the Book The book is divided into five chapters, including this chapter. The second chapter examines the state of research in Africa and the challenge that copyright poses to research and access to information in the African context. To this end, it begins by conceptualising research within the context of the book. It then examines the nexus between copyright and human rights, and how conversation around the interface has shaped access to information issues, especially within the African context, as a background to determining whether a specific explicit right to research in Africa is imperative. The third chapter focuses on the international and regional human rights framework, while the fourth discusses the national constitutions and frameworks for the protection of human rights to determine whether there is support for the development of a specific right to research in Africa. The fifth chapter ties the substantive chapters together, determining whether a specific explicit right to research is necessary and justifiable within the African context. The chapter then examines the nature and scope of, and the obligations inherent in, the right of research. The general concluding remarks are also contained in the fifth chapter.  African Union Member States. https://au.int/en/member_states/countryprofiles2 (accessed on 2 April 2022). 40  For instance, Nigeria, South Africa, Kenya, Zimbabwe, and Uganda. 41  Ncube note 23; Adebambo et  al. (2021), pp.  33–62; Ncube et  al. (2017); Adebola (2020), pp. 233–290. 42  Constituteproject.org. https://www.constituteproject.org/ (accessed on 22 June 2022). 39

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References Adebambo A, Oriakhogba D, Okorie C (2021) Negotiating the intellectual property protocol under the agreement establishing the African continental free trade area: priorities and opportunities for Nigeria. Law Dev Rev 15(1):33–62 Adebola T (2020) Mapping Africa’s complex regimes: towards an African centred AfCFTA intellectual property protocol. Afr J Int Econ Law 1:233–290 African Union. https://au.int/en/member_states/countryprofiles2. Accessed 2 April 2022 African Union List of countries which have signed, ratified/acceded the ACHPR. https://au.int/ sites/default/files/treaties/36390-­sl-­african_charter_on_human_and_peoples_rights_2.pdf. Accessed 21 June 2022 Afro-IP (2020) AFRO-LIVE delivers insights from Nairobi, Lagos and Cape Town. Podcast. http:// afro-­ip.blogspot.com/2020/04/iplive-­delivers-­insights-­from-­nairobi.html?m=1. Accessed 2 April 2022 Albagli S, Iwama AY (2022) Citizen science and the right to research: building local knowledge of climate change impacts. Human Soc Sci Commun 39(9) https://www.nature.com/articles/ s41599-­022-­01040-­8. Accessed 23 August 2022 Appadurai A (2006) The right to research. Global Soc Edu 4(2):167–177 Armstrong C et  al (2010) Access to knowledge in Africa: the role of copyright. UCT Press, Cape Town Band J, Gerafi J (2015) The Fair Use/Fair Dealing Handbook. http://infojustice.org/wp-­content/ uploads/2015/03/fair-­use-­handbook-­march-­2015.pdf. Accessed 2 April 2022 Beiter K (2021) Not the African copyright pirate is perverse, but the situation in which (S)he lives – textbooks for education, extraterritorial human rights obligations, and constitutionalization “from below” in IP Law. PIJIP/TLS. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1068&context=research. Accessed 2 April 2022 Beiter KD (2022) Reforming copyright or toward another science? – A more human rights-oriented approach under the REBSPA in constructing a “right to research” for scholarly publishing. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4196341. Accessed 4 September 2022 Benazizi A (2022) Morocco’s CNDH to Host the African Commission on Human and Peoples’ Rights. https://www.moroccoworldnews.com/2022/04/348270/moroccos-­cndh-­to-­host-­the-­ african-­commission-­on-­human-­and-­peoples-­rights. Accessed 21 June 2022 Constituteproject.org. https://www.constituteproject.org/. Accessed 22 June 2022 dos Santos F, Ncube CB, Ouma M (2022) Intellectual property framework responses to health emergencies  – options for Africa. South Afr J Sci 118(5/6) https://sajs.co.za/article/download/12775/18455. Accessed 19 June 2022 Duermeijer C, Amir A, Schoombe L (2018) Africa generates less than 1% of the world’s research; data analytics can change that. Retrieved from https://www.elsevier.com/connect/ africa-generates-less-than-1-of-the-worldsresearch-data-analytics-can-change-that Dutta S et al (eds) (2022) Global Innovation Index 2022: What is the future of innovation-driven growth? WIPO, Geneva. https://www.wipo.int/edocs/pubdocs/en/wipo-­pub-­2000-­2022-­ section1-­en-­gii-­2022-­at-­a-­glance-­global-­innovation-­index-­2022-­15th-­edition.pdf. Accessed 30 September 2022 EdTech Hub & eLearning Africa (2020) The Effect of Covid-19 on Education in Africa and its Implications for the Use of Technology: A Survey of the Experience and Opinions of Educators and Technology Specialists. https://aisa.or.ke/resources/the-­effect-­of-­covid-­19-­on-­education-­ in-­africa-­and-­its-­implications-­for-­the-­use-­of-­technology/. Accessed 2 April 2022 Electronic Information for Libraries (2022) Examples of the impact of COVID-19 pandemic on the copyright ecosystem submitted to the World Intellectual Property Organization. WIPO. https:// www.wipo.int/export/sites/www/meetings/en/docs/electronic-­information-­for-­libraries.pdf. Accessed 11 June 2022

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Flynn S et al. (2020) Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action. PIJIP/TLS. https://digitalcommons.wcl.american.edu/ research/48/. Accessed 2 April 2022 Flynn S et al. (2022) Research Exceptions in Comparative Copyright Law. PIJIP/TLS https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1077&context=research. Accessed 22 June 2022 für Freiheitsrechte G (2020) European Commission derails copyright reform in South Africa. https://edri.org/our-­work/european-­commission-­derails-­copyright-­reform-­in-­south-­africa/. Accessed 2 April 2022 Gavi (2022) The Covid-19 Race. https://www.gavi.org/vaccineswork/covid-­19-­vaccine-­race. Accessed 13 August 2022 Geiger C (2019) Reconceptualizing the Constitutional Dimension of Intellectual Property  – An Update. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496779#. Accessed 2 April 2022 Geiger C & Jutte BJ (2022a) Conceptualizing a ‘Right to Research’ and its Implications for Copyright Law: An International and European Perspective. PIJIP TLS. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1079&context=research. Accessed 13 August 2022 Geiger C, Jutte BJ (2022b) Digital Constitutionalism and Copyright Reform: Securing Access through Fundamental Rights in the Online World. http://copyrightblog.kluweriplaw. com/2022/01/25/digital-­constitutionalism-­and-­copyright-­reform-­securing-­access-­to-­through-­ fundamental-­rights-­in-­the-­online-­world/. Accessed 2 April 2022 Giblin R, Weatherall K (2016) Making sense of “the Public Interest” in copyright. In: Geiger C (ed) Intellectual property and access to science and culture: convergence or conflict? 3rd edn. CEIPI-ICTSD, pp. 66–78 Hannum H (1995/96) The status of the Universal Declaration of Human Rights in national and international law. Georgia J Int Comp Law 25:287–396 Health-e News (2021) Op-ed: Global Covid-19 vaccine race shows why South Africa must prioritise our own research and development. https://health-­e.org.za/2021/03/30/health-­research-­ and-­development/. Accessed 23 August 2022 Helfer LR & Austin GW (2011) The right to education and copyright in learning materials. In: Helfer LR & Austin GW (eds) Human rights and intellectual property: mapping the global interface. Cambridge University Press, Cambridge pp. 316–363 Hirko S (2020) Copyright and tertiary education for human development: rethinking the policy, law and practice in Ethiopia. Dissertation, University of Ottawa. https://ruor.uottawa.ca/bitstream/10393/40525/1/Hirko_Sileshi_2020_Thesis.pdf. Accessed 2 April 2022 Hirko SB (2021a) The implications of TRIPs’ criminal provisions on copyright exception for education in Ethiopia: a critical approach. Afr J Int Comp Law 29(2):263–287 Hirko SB (2021b) Rethinking copyright for sustainable human development: higher education and access to knowledge. Routledge, London IFLA (2020) Building Back Better for Libraries in Africa: An Interview. IFLA. https://www.ifla. org/news/building-­back-­better-­for-­libraries-­in-­africa-­an-­interview/. Accessed 2 April 2022 Kayali L (2020) How the U.S. and European Union pressured South Africa to delay copyright reform. https://www.politico.com/news/2020/06/28/copyright-­reform-­south-­africa-­344101. Accessed 2 April 2022 Manteghi M (2021) Text and data mining in the EU: managing a conflict between copyright and the right to information. Eur Intellect Prop Rev 43(11):698–701 Mason A (1998) The public-interest objectives and law of copyright. J Law Inf Sci 9:7 Ncube C (2020) The musings of a copyright scholar working in South Africa: is Copyright Law supportive of emergency remote teaching? https://www.afronomicslaw.org/2020/05/13/the-­ musings-­of-­a-­copyright-­scholar-­working-­in-­south-­africa-­is-­copyright-­law-­supportive-­of-­ emergency-­remote-­teaching. Accessed 2 April 2022

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Ncube C et al. (2017) Intellectual Property Rights and Innovation: Assessing Regional Integration in Africa (ARIA VIII). Open AIR. https://openair.africa/intellectual-­property-­rights-­and-­ innovation-­assessing-­regional-­integration-­in-­africa-­aria-­viii/. Accessed 2 April 2022 Ncube CB (2017a) Calibrating copyright for creators and consumers: promoting distributive justice and Ubuntu. In: Giblin R & Weatherall K (eds) What if we could reimagine copyright?. ANU Press, Australia, 253–280 Ncube CB (2017b) Using human rights to move beyond reformism to radicalism: A2K for schools, libraries and archives. In: Callahan M & Rogers J (eds.) A critical guide to intellectual property. Zed Books, London, pp. 117–143 Nwauche ES (2008) Open Access and the Public Interest in Copyright. Paper presented at the Conference on Electronic Publishing and Dissemination, Dakar, Senegal, 2-7 October 2008. https://codesria.org/IMG/pdf/08_Enyinna_S-­_Nwauche.pdf. Accessed 2 April 2022 Oke E (2022) The TRIPS COVID ‘Waiver’ Decision: Rhetorical Action or Realistic Solution? https://emmanueloke.com/2022/06/18/the-­trips-­covid-­waiver-­decision-­rhetorical-­action-­or-­ realistic-­solution/. Accessed 18 June 2022 Okediji RL (2006) The international copyright system: limitations, exceptions and public interest considerations for developing countries. UNCTAD - ICTSD Project IPRs Sustain Dev 5:1–52 Oriakhogba D, Kawooya D (2022) Strong Support, Discordant Tunes: The African Group’s Proposal on a Work Program on Limitations and Exceptions Moves Forward in WIPO’s Committee on Copyright. https://ipkitten.blogspot.com/2022/05/guest-­post-­african-­groups-­ proposal-­on.html. Accessed 11 June 2022 Oriakhogba DO (2022) The right to research in Africa: making African copyright whole. Joint PIJIP/TLS Research Paper Series. https://digitalcommons.wcl.american.edu/research/78/. Accessed 8 October 2022 Reed K, Schenck MC (eds) (2023) The right to research: historical narratives by refugees and global south researchers. McGill-Queen’s University Press, Montreal Sag M (2019) The new legal landscape for text mining and machine learning. J Copyright Soc USA 66:164 Schabas WA (2021) The customary international law of human rights. OUP, Oxford Shabalala D (2022) Here Again?!  – The WTO COVID19 Waiver Ministerial Decision- June 2022. https://dalishabalala.wordpress.com/2022/06/17/here-­again-­the-­wto-­covid19-­waiver-­ ministerial-­decision-­june-­2022/. Accessed 18 June 2022 Shaheed F (2012) Report of the Special Rapporteur in the Field of Cultural Rights on The Right to Enjoy the Benefit of Scientific Progress and its Application. A/HRC/20/26. https://www.ohchr. org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-­HRC-­20-­26_en.pdf. Accessed 2 April 2022 Shaheed F (2014) Report of the Special Rapporteur in the Field of Cultural Rights on Copyright Policy and the Right to Science and Culture. A/HRC/28/57. https://digitallibrary.un.org/ record/792652?ln=en. Accessed 2 April 2022 Shirley J, Mawire B, Baloyi-Sekese M (2020) COVID-19 and the National Library of South Africa: Adapting to the new normal. Alexandria: J Natl Int Library Inf Iss 30(2-3):201–208 Simma B, Alston P (1988) The sources of human rights law: custom, jus cogens and general principles. Aust Yearb Int Law 12:82–108 Strba SI (2012) International copyright law and access to education in developing countries: exploring multilateral legal and quasi-legal solutions. Brill, Netherlands Sun H (2019) Copyright law as an engine of public interest protection. Northwest J Technol Intellect Prop 16(3):123 Tang GH (2010) Copyright and the public interest in China. Edward Elgar, Cheltenham Thembisetty S (2021) Opposition to the TRIPS waiver: dispatches from the frontline. https://blogs. lse.ac.uk/politicsandpolicy/trips-­waiver-­one-­year-­on/. Accessed 2 April 2022 Thembisetty S et al. (2022) Addressing vaccine inequity during the covid-19 pandemic: the TRIPS intellectual property waiver proposal and beyond. The Cambridge Law Journal. https://www. law.nyu.edu/sites/default/files/Siva%20Thambisetty.pdf. Accessed 19 June 2022

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Chapter 2

Research and the Copyright Challenge to Access to Information in Africa

2.1 Introduction The chapter begins by briefly highlighting the state of research in Africa and the challenges that the exercise of copyright poses to access to information which is a necessary ingredient for effective research. This creates an important foundation to demonstrate the relevance and justification for the right to research in Africa in Chap. 5. For proper perspective, this chapter conceptualises research and the right to research, and highlights their importance within the context of copyright law reform in Africa. To this end, it draws from authoritative literature on the right to research, the United Nations Educational, Scientific and Cultural Organization’s Recommendation on Science and Scientific Researchers, 2017 (UNESCO Recommendation),1 and relevant case law from jurisdictions such as Canada. Not being a treaty, the UNESCO Recommendation is a non-binding normative instrument that sets out very useful and valuable checklists of political and institutional requirements for the development of scientific research. The checklists are particularly more useful for developing countries, such as those in Africa, in their quest to develop effective national policies and strategies on science, technology and innovation; and promote the status of scientific researchers within their territories. By virtue of Article VIII, read with Article IV of the UNESCO Constitution,2

 Basic texts: 2018 edition; including texts and amendments adopted by the General Conference at its 39th session (Paris, 30 October-14 November 2017) Annex II. https://en.unesco.org/themes/ ethics-science-and-technology/recommendation_science. Accessed on 2 April 2022 (UNESCO Declaration). 2  Constitution of the United Nations Educational, Scientific and Cultural Organization, 1945. Article VII provides that: ‘Each Member State shall submit to the Organization, at such times and in such manner as shall be determined by the General Conference, reports on the laws, regulations and statistics relating to its educational, scientific and cultural institutions and activities, and on the action taken upon the recommendations and conventions referred to in Article IV, paragraph 4’. 1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 D. Oriakhogba, The Right to Research in Africa, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-33282-1_2

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2  Research and the Copyright Challenge to Access to Information in Africa

Member States have a duty to report on their implementation of the UNESCO Recommendation. Thus, although not legally binding, the implementation of the UNESCO Recommendation is monitored by UNESCO governing bodies through the secretariat. In consultation with partners, every four years, the UNESCO secretariat collects information from Member States on the implementation of recommendations and proffer useful guides for the future.3 This gives the UNESCO Recommendation an authoritative weight and underscores its relevance within the context of this book. Moreover, it offers useful insights into the scope of the right to science protected in international human rights law, as further discussed in Chap. 3. Indeed, the UN’s Economic and Social Council’s Committee on Economic Social and Cultural Rights (ESC Committee), in its General Comment No. 25, relied on the UNESCO Recommendation while conceptualising ‘science’ under Article 15(1) (b) of the International Covenant on Economic, Social, and Cultural Rights, 1966.4 Particularly, the definition of research drawn from the UNESCO Recommendation in this chapter will assist in gauging the scope of the right to research envisaged under the right to science discussed in Chap. 3. As will become apparent shortly, the Canadian case law is relevant within the African context because it offers important perspectives on the research phenomenon in relation to conversations around the conflict between the exercise of copyright and access to information. The Canadian case law constructed research in relation to the fair dealing exception in section 29 of the Canadian Copyright Act.5 The fair dealing exception in the Canadian Copyright Act is similar to what is provided in the national copyright regime of the majority of African countries.6 Unfortunately, there is a paucity of judicial definitions of the term under the national copyright law of African countries. Therefore, Canadian case law is relevant to fill this gap. This approach is not without support. Key Canadian cases have been relied upon by national courts in Africa when called upon to interpret the fair dealing

Article IV(4) provides that: ‘The General Conference shall, in adopting proposals for submission to the Member States, distinguish between recommendations and international conventions submitted for their approval. In the former case a majority vote shall suffice; in the latter case a twothirds majority shall be required. Each of the Member States shall submit recommendations or conventions to its competent authorities within a period of 1 year from the close of the session of the General Conference at which they were adopted’. 3  UNESCO