Brooklyn Journal of International Law


Klaus D. Beiter

First Page



This article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks 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 a sense that legally obliges the international community of states toward states with fragile science systems, or in an extraterritorial sense that would require the right to be obeyed beyond borders—and it then enquires what the normative implications of such a right would be for copyright and science. It is submitted that current official interpretations of the REBSPA reveal flaws and gaps. Here, the REBSPA is accordingly reinterpreted in accordance with what is called a more human rights-oriented approach, its guiding concept being that of “adequacy for science.” This 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 that 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.