SOAS Research Online

Abstract

Copyright law no longer provides an effective balance between the need to protect the rights of authors on the one hand, and the need to ensure that society benefits from cultural works on the other. The failure to maintain this balance is problematic because copyright law has the potential to restrict the enjoyment of the right to education, which is a fundamental right recognised in numerous international human rights instruments. This thesis examines the extent to which copyright law restricts the ability of the State to realise the right to education as recognised in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This thesis undertakes its analysis by exploring copyright law’s internal balancing mechanisms to accommodate education, as well as the State’s duty for progressive realisation, the 4As Scheme, and the principles of minimum core obligations, nondiscrimination, and non-retrogression under the ICESCR. The thesis also explores the extent to which States may justify copyright restrictions on education on the basis that copyright protection may be considered a human right recognised in Article 15(1)(c) of the ICESCR. Even though this thesis argues that copyright law restrictions on the right to education may be seen as violations of State obligations under the ICESCR, it does not argue for abolishing copyright law completely, especially because copyright protection can be a useful tool for realising certain aspects of the ICESCR. Instead, the thesis recommends that States rely on the principles of flexibility and certainty when developing their copyright law to ensure that this law facilitates education instead of restricting it.