The Relationship between Copyright Law and the Right to Education

Does the right to education have any restrictions due to copyright laws?

Name- Touqeer Ajaz Qamar

Roll No- L21LLBU0008
Course- LLB HONS.
Submitted to- Dr. Ruchir Singh
Date- 26/04/2023
 TABLE OF CONTENTS
S.NO PARTICULARS

1 ABSTRACT

2 INTRODUCTION

3 EMBODIMENT IN DIFFERENT
LEGAL REGIMES OF THE
RIGHT TO EDUCATION
4 TEXTBOOKS AND
EDUCATIONAL MATERIALS
AND THE LAW OF COPYRIGHT
VS THE RIGHT TO EDUCATION
5 THE DOCTRINE OF FAIR USE

6 HOW COULD LEARNING

MATERIALS BE MADE MORE
ACCESSIBLE?:
OTHER ALTERNATIVES TO
DOCTRINE OF FAIR USE
7 CONCLUSION
ABSTRACT
The right to education, which is acknowledged as a fundamental human right in both
domestic and international legal systems and institutions, has not been fully realised in both
developed and developing nations. The high expense of educational materials caused, among
other things, by the publishing industry's current copyright practises and rules, the majority of
which are concentrated in developed nations like the USA and Europe, is one of the causes.
The goal of the essay is to examine the degree to which copyright law interferes with the
realisation of the right to education and to offer possible solutions that aim to strike a balance
between these competing rights.
The paper is divided into three sections: the first part examines how the right to education is
embodied in various national and international legal frameworks and the severity of the issue
of restricted access to educational resources brought on by copyright protection. The
following section of the paper discusses the efficacy of international copyright law's
flexibility provisions, particularly the fair use concept. The final section of the paper explores
fair use alternatives and the effects of these additional mechanisms.

INTRODUCTION
An Act to Encourage Learning was the title of the first copyright law, the Statute of Anne 1 of
1791. Consequently, the copyright law was established on the principle that it encourages the
development and communication of knowledge.
The U.S. Constitution grants Congress the authority to "promote the progress of Science" (or,
in more contemporary terms, "knowledge") Congress created a national copyright system to
provide protection for scientific and artistic works using the authority granted to it by this
law.
Literary, artistic, and subsequently musical and cinematic works are all included in the
definition of "original and creative works" that copyright tries to protect. Copyright
protection was introduced with the development of the printing press to encourage writers
and publishers to generate revenue.
With the development of the welfare state concept and its associated obligations during the
nineteenth century, the state's role increased to include participation in the provision of
education in the public real. The right of everyone to an education includes the provision of
educational resources.2
Conflicts may develop between the right to education and the exclusive private right of the
author who owns the copyright because copyrights influence the costs at which textbooks and
other educational resources are given. Specific government duties to provide education in the
public interest emerged along with the growth of socialist concepts of the welfare state and its
related commitments
1
Copyright Act, 1709, 1710, 8 Ann., c. 19 (Eng.)
2
Laurence R. Helfer and Graeme W. Austin (2011), HUMAN RIGHTS AND INTELLECTUAL
PROPERTY
[Online], Cambridge: Cambridge University Press., Available from: Cambridge Books Online, available
at:
http://dx.doi.org/10.1017/CBO9780511976032
EMBODIMENT IN DIFFERENT LEGAL REGIMES OF THE RIGHT TO
EDUCATION
Numerous international agreements recognise the right to education as a "inherent right" to
uphold the "dignity" of all people, and as a result, human rights form the basis of the right to
education. The Universal Declaration of Human Rights (UDHR)'s Preamble, which
underlines "the inherent dignity and of the equal and inalienable rights of all the members of
the human family," asserts as much in Article 26 of the UDHR. According to ICESCR's
Article 13(1), "education shall be directed to the full development of the human personality
and the sense of its dignity, and shall strengthen respect for human rights," establishes a more
direct link between human dignity and the right to education.
Education also advances other principles of human rights. The fundamental method for
economically and socially marginalised adults and children to escape poverty, according to
the Committee on Economic, Social and Cultural Rights' General Comment No. 13 is
education. As is commonly accepted, there is a substantial positive correlation between
education and health outcomes, whether assessed by death rates (mortality), sickness
(morbidity), health behaviours, or health knowledge. Education is thus intimately linked to
public health and individual survival.
Basic literacy and numeracy skills can help a person get work and help meet other
requirements, such those for food and shelter. Education is also critical to development
programs, and to the realization of sustainable development. As Ruth Okediji observes, “A
well informed, educated, and skilled citizenry is indispensable to the development process.”
The idea of self-realization is linked to education. For instance, the Universal Declaration of
Human Rights Article 26(2) specifies that "education shall be directed to the full development
of the human personality. “Education is referred to in the context of "the development of the
child's personality, talents, and mental and physical abilities to their full potential" in the
Universal Convention on the Rights of the Child (UNCROC). A well-educated, informed, and
active mind that can wander freely and widely is one of the pleasures and benefits of human
existence, according to the Committee on Economic, Social, and Cultural Rights.
The right to education is also referred to as an empowerment right since it gives citizens the
ability to participate more actively in political systems of any state, even with only a basic
education. As a result, the right to education is compatible with civic and political rights. For
instance, education gives the populace the means to confront and question accepted
government doctrine. Citizens who are educated are better equipped to comprehend the
political issues at hand, which makes democracy more effective. Basic democratic rights,
such as the right to vote, become more significant when educated citizens are better able to
choose the best candidate to lead their country.
The U.S. Supreme Court's rulings reflect a number of the goals that are intended to be
attained with the granting of a state's inhabitants the right to an education, as expressed in the
numerous international agreements outlined above. Education is "the most important function
of the local and state governments," the "very foundation of good citizenship," and the
"principal instrument in awakening the child to cultural values," according to the Supreme
Court in Brown v. Board of Education.3
3
347 U.S. 483 (1954).
In accordance with Article 21 of the Indian Constitution 4, the Hon. Supreme Court of India
has widened the scope of the right to education.29In 2002, Part III of the Indian Constitution
granted the right to education the status of a Fundamental Right. The Constitution (Eighty-
sixth) Amendment Act added Article 21A, which states that "The State shall provide free and
compulsory education to all children of the age of six to fourteen years in such a manner as
the State may, by law, determine," making education a Fundamental Right for Children in the
age group of 6 to 14 years.
This Act, which became effective on April 1, 2010, mandates that every child should receive
free basic education, according to the government.
Additionally, even private educational institutions must reserve 25% of their spaces for
children from less affluent backgrounds under the Act. The Act mandates that all schools hire
qualified teachers and that no school may refuse to admit a pupil. Schools who don't have
enough teachers with the right training must follow the rule within three years. The new
legislation mandates that all public schools have a minimum level of infrastructure, qualified
teachers, and a playground. The government will create a framework to help underfunded
schools follow the Act's regulations. In order for the states to develop their own regulations to
implement the Act, the federal government has already prepared model regulations that have
been sent to the states. Additionally, the Centre has created distinct rules for the Union.
Territories which will be notified by the Law Ministry next week.
Additionally, the Act requires local and state governments to build primary schools within a
one-kilometer radius of the community. For students in Classes VI through VIII, the school
should be three kilometres (miles) or less from the neighbourhood. According to government
estimates, the Act's implementation will cost Rs. 1.71 lakh crore over the next five years.

TEXTBOOKS AND EDUCATIONAL MATERIALS AND THE LAW OF

COPYRIGHT VS THE RIGHT TO EDUCATION
The crucial issue of potential conflicts derives from the fact that the realisation of the right to
education depends on the educational resources, in which writers may have a pecuniary
interest.
Numerous variables, including the nation's per capita income, have an impact on the cost of
textbooks. For instance, in the United States, one of the most industrialised nations, textbooks
are frequently provided to students "for free" as part of the system on public instruction.
Contrarily, in the majority of developing nations, textbooks are not provided by the
government; instead, students are required to pay for them on their own. These justifications
for state-owned or state-sponsored publishing include ineffective production techniques, state
monopolies and favoritism.
These factors can include lack of competition and industry consolidation in the case of
market-based textbook publication. A student in a developing country may pay a relatively
high price for a book in comparison to a student in a wealthy country because multinational
publishers fail to practise differential pricing, which results in higher prices.
Major international languages also predominate in many developing nations,
4
Article 21 provides: “No person shall be deprived of his life or personal liberty except according to
procedure
established by law.”
The limited resources for publishing and other areas are further strained by domination.
These factors also make these countries dependent on the countries that produce content in
well-known world languages. Furthermore, Minority language use in emerging nations
necessitates either the creation of new content or the translation of already-existing items that
contribute to the GDP.
Relying on trade books instead of textbooks does not address the access or affordability
problems. Compared to a textbook-based method, a literature-based approach to basic
education is more expensive. This is a result of a lack of infrastructure and publishing
capacity, the high cost of teacher preparation, and issues with language, particularly the
problem of multilingual nations. The main barrier to literacy with only non-textbook reading
resources, however, is a lack of available books.
The combination of all these elements has resulted in severe access issues for basic
instructional resources that are copyrighted.

THE DOCTRINE OF FAIR USE

Instead of addressing the need to increase domestic publishing capacity or provide broader
access to books released outside the tiny national market, dominant copyright practises and
laws in the global publishing business have encouraged inequality. 5 The end consequence is
the development of copyright laws that are suitable for emerging nations. The Appendix to
the Berne Convention is the main international document that addresses these
concessions.The Appendix makes it easier for poor countries to "bulk access" some sorts of
copyrighted content, particularly educational materials. The Appendix gives countries the
option to implement a compulsory licencing system that restricts the ability of copyright
holders to manage the reproduction and translation rights in these works.
The Appendix grants countries the option of implementing a compulsory licencing
programme that restricts the ability of copyright holders to manage the reproduction and
translation rights in these works.67 An applicant for a compulsory licence to translate or
reproduce protected works under the Appendix must pay a fee that is reasonably
proportionate to the price typically charged in the country for comparable works.68 However,
the conditions under which such licences may be issued are quite limited and intricate. First
of all, a translation licence may only be granted for educational, scholarly, and research
purposes, and it may only be issued three years after the work's initial publication.
However, were found to be unlawful and to constitute copyright infringement in a significant
court ruling, as is clear from the 1991 case of Basic Books Inc. v. Kinko Graphics Corp.6 In
this lawsuit, the plaintiffs, who are all major publishing houses, claimed that Kinko's violated
their copyrights when it reproduced passages from books under the plaintiffs' ownership
without their consent or payment of the requisite fees and then sold the copies for a profit.
The Court determined that Kinko's failed to persuade it that the portions it took without

5
Margaret Chon, Intellectual Property “from Below”: Copyright and Capability for Education, 40 U.C.
DAVIS L.
REV. 803 (2007).
6
758 F. Supp. 1522 Basic Books, Inc. v. Kinko’s Graphics Corp., available at:
http://fairuse.stanford.edu/case/basic-books-inc-vkinkos-graphics-corp/
authorization were a fair use of the in question works and came to the conclusion that they
were in violation of the Copyright Act. The court awarded the plaintiffs statutory damages in
the amount of and injunctive relief.

The case of Princeton University Press v. Michigan Document Services (MDS) 7 Inc. shows
how basic fair use concerns have yet to be resolved and how even federal judges disagree on
what constitutes fair use in general. In this instance, a private business produced and sold
course packs in a manner akin to Kinko's, and it was determined that the copy shop violated
the fair use guidelines.
In the case American Geophysical Union v. Texaco Inc.8 , Chickering, a Texaco employee
conducting scientific research to enhance the commercial performance of petroleum products,
kept six photocopies of articles from the Journal of Catalysis in his files for future use
because he thought the information and data they contained would help his ongoing
professional research. The question was whether Chickering's photocopying of certain
publications for his own research qualified as fair use. The Court ruled that a Texaco
scientist's use of particular broad articles for research purposes did not qualify as fair use.
However, a complaint was brought against Georgia State University against Cambridge
University Press, Oxford University Press, and Sage Publications in a more recent incident
that bears a remarkable resemblance to the DU Photocopy case. The defendants were
disseminating these course packs digitally using two of their own on-campus management
systems, E-Res (E-Reserves) and ULearn. As opposed to paper course packs like in the DU
case, both of these solutions permitted students to access a digital copy of the designated
course material. If the defendant had to get licences or "permissions" in order to post a
sample of the plaintiff's work on E-Res or ULearn, that was the question at hand.
On each individual charge of copyright infringement, the District Court used fair use
analysis. This means that five out of seventy-four claims of copyright infringement were
upheld by the court in favour of the defendants. However, the 11TH Court of Appeals ruled
on appeal that Due to the District Court's improper application of the fair use test and the
Court's adoption of an illegal methodology, the Court overturned the District Court's
judgement. The Court of Appeals ruled that each case must consider all four criteria for fair
use and that one or more criteria may be given less weight than the others.
In this case, the defendant was in the business of selling course packs to Delhi University
students that contained passages from humanities textbooks on which the plaintiff owned the
copyright.The Delhi University professors recommended these course packs to the students.
Publishing houses like Oxford and Cambridge University, the Press of Cambridge University,
and Delhi University sued the photocopying shop and asked for a permanent injunction to
stop the plaintiffs from selling the course packs as well as compensation for any lost sales as
a result of the alleged violation of the plaintiff's copyright.In its decision in favour of the
publishers, the Delhi High Court issued an interim order preventing the defendants from
selling the course packs.

7
Princeton University Press v. Michigan Document Services Inc., 99 F.3d 1381 (6th Cir. 1996).
8
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994).
HOW COULD MATERIALS FOR LEARNING BE MADE MORE
ACCESSIBLE?
1) The Open Access System

Alternatives to the Fair Use Principle

Simply expressed, the Open Access System is concerned with the unrestricted use
and dissemination of intellectual resources.
Theses, dissertations, digital books, academic journal articles, and research data
have been the main areas of concentration so far. As long as the content is
available online and searchable, people can find and link to entire textbooks, read,
copy, download, print, and distribute them for any legitimate reason. This practise
is known as open access (OA). It complies with current copyright regulations by
allowing authors to transfer their rights to publishers who offer open access to
their work or to keep the right to post their papers on institutional systems.
Open access isn't applicable to content where authors or publishers anticipate
financial rewards.9

2) Creative Commons
A nonprofit organisation called Creative Commons makes it possible to share and
use information and creativity by providing free legal instruments. The
organisation offers individualised copyright licences that can be selected by the
writers, enabling them to grant authorization for their works to be made publicly
available for use and sharing.With CC licences, authors can quickly modify the
default copyright language of "all rights reserved" to "some rights reserved."10

3) Number crunching: understanding the impact of creative commons

According to statistics taken from the Creative Commons website, many authors
all over the world use Creative Commons (CC) licences to make their works more
widely available.
It is encouraging to see that more authors than four years ago are choosing more
open and liberal CC licences. Instead of taking advantage of the exclusive
copyright granted to their works, this shows the writers' attitude towards making
their works more widely accessible and their desire to reach millions of people
through their creative efforts.
The majority of the works that are CC-Licensed are released in North America.
Further, CC Licences are utilised by about 9 million websites.

9
Aniket Pandey, Apoorv Pandey, Delhi University vs. Publishers: A Critical Appraisal on Doctrine of Fair
Dealing Vis a Vis Fair Use, available at http://ijlljs.in/delhi-university-vs-publishers-aniket-pandey-b-b-a-
ll-bcorporate-law-hons-5th-yr-university-of-petroleum-energy-studies-dehradun-and-apoorv-pandey-b-b-
a-ll-b-hons3rd-yr-itm-universi/
10
1Creative Commons: About, available at: http://creativecommons.org/about
 Therefore, one may draw the conclusion that copyrighted materials have
higher costs, which students and other users would otherwise have to pay; that
open access movements like Creative Commons have made textbooks and other
types of reading materials more accessible through the medium of the internet;
and that they have also allowed authors to retain copyright over their creative
works.
After realising the impact open access movements, including Creative
Commons, have had on the sharing of educational and reading materials to
students and other users around the world, UNESCO launched the Open Access
Repository under Creative Commons, making more than 300 digital reports,
books, and articles available under Creative Commons Licences.

CONCLUSION
If courts around the world sought more clarification on the scope and goal of fair use clauses,
that might be one method to increase access to educational materials. The success of
initiatives like Creative Commons shows that authors are eager to connect with a large
audience.
With the enactment of open access provisions under domestic copyright laws, such efforts
should be supported. Governments should also commit to making educational resources more
accessible, especially in developing nations where education is a crucial instrument for
improving the nation's socioeconomic situation.