Reforming Copyright or Toward Another Science? – A More Human Rights-Oriented Approach Under the REBSPA in Constructing a ‘Right to Research’ for Scholarly Publishing
Forthcoming in Brooklyn Journal of International Law, Vol. 48, No. 1 (2023)
56 Pages Posted: 21 Sep 2022
Date Written: August 15, 2022
This article identifies copyright impediments existing in the sphere of science, to then make (tentative) suggestions as to how these may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, specifically asking whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. A substantial part of the discussion examines whether and, if so, in what ways, the REBSPA gives rise to a “right to research,” also in an extraterritorial sense that would require the right to be respected beyond borders, and what the normative implications of such a right would be for copyright and science. It is submitted that current interpretations of the REBSPA reveal flaws and gaps. The REBSPA is accordingly reinterpreted in accordance with what is called a more human rights-oriented approach here, its guiding concept being that of “adequacy for science.” The article finds that, while existing copyright law needs certain reforms in the interim to accommodate the needs of science, in the longer term, entire institutionalized science may have to be reconceived. Genuinely open science and the creation of a “true” scholarly knowledge commons require far-reaching changes in the way copyright applies in the sphere of science. The continued role of commercial scholarly publishing needs to be questioned. Potentially, it will be necessary to “move beyond” the applicability of copyright in the field of science.
Keywords: (REBSPA), scientific/academic freedom, right to research, copyright, Berne Convention, TRIPS, World Copyright Treaty, UNESCO, Open Access, scientific knowledge commons
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