Introduction

Global intellectual property regimes reflect a top-down approach to global intellectual property regulation, following from the interests and needs of intellectual property-rich states (Arewa 2006, pp. 79–80). This approach fails to generate the full range of policy choices for both developed and developing countries to maximize global social welfare with respect to human development needs such as education. To address this bias, I propose an approach of intellectual property (hereinafter IP) ‘from below’, which links IP to distributive justice and human development. The term ‘from below’ also dovetails with the term ‘Global South’ that is increasingly being used to denote that subset of developing countries that are located primarily below the equator and also below the median in terms of development indicators, whether measured by Gross National Income or the Human Development Index (see United Nations Development Programme [UNDP] 1990, p. 1; 1991, p. 2). This approach responds to the imbalance that observers in both the North and the South are identifying in both domestic and global IP policymaking settings.

In this chapter I first describe the approach from below and introduce ‘development’ as a key term of art in global IP. Employing a method from below, I then sketch the lack of access to basic educational materials in many developing countries, both descriptively and with respect to the copyright dimension. In the context of building capacity for education, the term ‘development’– if taken seriously – should result in a mechanism for access by users to knowledge goods for education. For many countries, both developed and developing, books remain an appropriate and useful technology, especially for primary and secondary education. Just as the digitizing of books is allowing us to re-imagine our global digital informational universe, can access to hard copies for educational purposes be re-imagined? This chapter focuses primarily on Article 10(2) of the Berne Convention, the so-called illustration for teaching exception, which endorses national exceptions to copyright for purposes of access to education. Of course, copyright is only one of several factors affecting the provision of textbooks (Farrell & Heyneman 1988, pp. 33–39). However, it is a significant one and deserves more scrutiny in this particular context.