An approach to intellectual property from within a human development framework can contribute meaningfully to the WIPO Development Agenda, which was approved by the WIPO General Assembly in September 2007. Setting the proper regulatory balance between exclusive rights and access through exceptions and limitations to those rights is key to building national innovation capacity. A human development framework allows intellectual property norm-setters to prioritize the development of healthy and literate populations who are foundational to the functioning knowledge economies that intellectual property already assumes. Building upon an earlier piece in which Professor Chon posited that a substantive equality principle was necessary in global intellectual property regimes in order to counteract the development asymmetries exacerbated by national treatment and minimum standards required by TRIPS, she applies that principle here to copyright and access to textbooks. Specifically, the Berne Convention, WIPO Copyright Treaty and TRIPS all contain provisions related to educational exceptions to copyright. Yet the full ambit of educational exceptions has not been explored by reference to the goal of access by impoverished consumers to educational materials such as textbooks for purposes of increasing literacy. A substantive equality principle suggests that much more robust norm-setting and interpretation of these exceptions should be considered on the national level, and a liberal application of the so-called three step tests to these exceptions on the supranational level. Proposed as part of a symposium on intellectual property and social justice, this theoretical framework of intellectual property from below accounts for distributional disparities between global producers and users of knowledge goods situated in radically unequal circumstances, and encourages the production of key global public goods such as education and public health, in synergy with the knowledge goods privileged by intellectual property.
Intellectual Property from Below: Copyright and Capability for Education, 40 U.C. DAVIS L. REV. 803