[A2k] Right to Science and Culture in National Constitutions

Heesob Nam hurips at gmail.com
Fri Mar 30 09:19:18 PDT 2018


My study on the national constitutions and the right to science and
culture (R2S&C) is not over yet, but I want to share the interim
result that I have studied so far.

I have reviewed constitutions of 150 countries including the EU and
found 36 constitutions recognise R2S&C. The 36 constitutions recognise
all of the three components of R2S&C: (1) the right to take part in
cultural life; (2) the right to enjoy benefit of scientific progress;
and (3) the right to benefit from moral and material interests
resulting from any scientific, literary or artistic production of
which he is the author (Author Clause). In addition, 13 constitutions
only recognise the first two components of R2S&C, excluding Author
Clause.

The 36 constitutions are found in Afghanistan, Albania, Andorra
(indirectly, UDHR), Argentina, Azerbaijan, Belarus, Bhutan, Bolivia,
Bosnia and Herzegovina (indirectly, ICESCR), Brazil, Burundi
(indirectly, UDHR + ICESCR), Chad, Colombia, Dominican Republic,
Ecuador, Ethiopia, Guatemala, Kenya, Kosovo (indirectly, UDHR),
Lithuania, Macedonia, Moldova, Mongolia, Montenegro, Nepal, Panama,
Paraguay, Peru, Philippines, Portugal, Serbia, Syrian Arab Republic,
Tunisia, Ukraine, Venezuela, Viet Nam [1].

The 13 constitutions are those of Bahrain, Benin, Cuba, Indonesia,
Iraq, Mexico, Morocco, Poland, Saudi Arabia, Switzerland, Thailand
(2017), Uzbekistan, Zimbabwe [2].

[1] The constitutions incorporating UDHR and ICESCR and recognising
their superior legal status than the legislations are counted-in,
while the constitutions granting the same status as the legislations
are counted-out. Examples of the counted-in are: Art 19 of
Constitution of Burundi ("UDHR, ICESCR ... are an integral part of the
Constitution"); and Art 22 of Constitution of Kosovo ("human rights
and fundamental freedoms guaranteed by the following international
agreement [including UDHR] ... are directly applicable ... have
priority over provisions of laws").

[2] When counting constitutions for Author Clause, I exclude those
that grant a discretionary power to legislative branch or federal
government such as the German and US constitutions because the right
of author is a right under legislation rather than a constitutional
right and the legislative body does not have an obligation to enact
the Author Clause.[3] The states protecting the author's right by a
constitutional provision for property protection without specifying IP
or author's right are excluded as well.

[3] See, Goldstein v California, 412 US 546, 562 (1973) (“While the
area in which Congress may act is broad, the enabling provision of
Clause 8 does not require that Congress act in regard to all
categories of materials which meet the constitutional definitions.”);
Sean M. O’Connor, The overlooked French influence on the intellectual
property clause, 82 U. Chi. L. Rev. 733 (2015) p. 736 (“Further,
contrary to what some may believe, Congress is not required to grant
any exclusive rights: it may refrain from exercising its power under
the IP Clause altogether").

When focusing on Author Clause:
- 65 constitutions contain Author Clause (43.3%)
- 81 constitutions do not contain Author Clause (54.0%)
- 4 constitutions are uncertain (2.7%).

These figures can be compared with those found in previous works such
as O.H. Dean, “The Case for the Recognition of Intellectual Property
Rights in the Bill of Rights” (1997) ("54% of constitutional Bills of
Rights protect intellectual property in some way and that 71% of those
enacted between 1985 and 1996 do so."), Kennedy, R (2011) 'Was it
Author's Rights All The Time?: Copyright as a Constitutional Right in
Ireland'. Dublin University Law Journal, 33 :253-284), and C. Geiger
(2015) "Implementing intellectual property provisions in human rights
instruments: Towards a new social contract for the protection of
intangibles" (more than half of around 200 constitutions do not
mention IPRs at all).

Among 28 EU Member States, 17 States [4] (60.7%) have no
constitutional provision for author or IPR, including two States
having a discretionary clause on IP: Germany; and Italy. Among these,
Ireland seems to exclude IPR from property by saying “private
ownership of external goods").

[4] 17 States: Austria, Belgium, Cyprus, Finland, France, Germany,
Greece, Hungary, Ireland, Italy, Luxemburg, Malta, Netherlands,
Poland, Romania, UK, and Denmark

10 States have a constitutional provision but its scope is diverse
(Bulgaria, Croatia, Czech, Estonia, Latvia, Lithuania, Portugal,
Slovakia, Slovenia, Spain, and Sweden).

- Only copyright in two: Estonia; Portugal.
- Mentioning IPRs or IP laws in two: Slovakia; Sweden.
-  Mentioning only author or work but has a room to encompass
invention – Czech (right to fruits of one’s creative one intellectual
work); Lithuania  (spiritual and material interests of author which
are related to scientific, technical, cultural, and artistic work)
- Clearly mentioning invention or patent – Bulgaria (copyright and
inventor’s right); Latvia (copyright and patent); Slovenia (copyright
and other rights … invention).
- Not mentioning of author or invent, instead broadly speaking -
Croatia (protection of moral and material rights deriving from
scientific, cultural, artistic, intellectual and other creative
activities shall be guaranteed).

If you think the results above does not tell correctly about your
constitution, please let me know. When I finish my study on this
topic, I'll publish it.

Best,
Heesob

On 28 January 2018 at 07:24, ICDED + proyecto Xnet <info at conservas.tk> wrote:
> Hi
>
> Ambigous Spanish Constitución:
>
> PREAMBULO
> Promover el progreso de la cultura y de la economía para asegurar a todos una digna
> calidad de vida.
>
> (promote the progress of culture)
>
> Artículo 44
> 1. Los poderes públicos promoverán y tutelarán el acceso a la cultura, a la que todos
> tienen derecho.
>
> (promote and protect the access to culture, which is a right)
>
> Cheers
>
> Simona Levi, Xnet
>
>
> El 26/1/18 a las 19:13, Andrew Rens escribió:
>> Hi
>>
>> In addition to the rights in the South African Bill of Rights already
>> pointed out
>> by Aslam there are three important aspect of Section 16,
>>
>> https://www.gov.za/documents/constitution/chapter-2-bill-rights#16
>> <https://www.gov.za/documents/constitution/chapter-2-bill-rights#29>
>>
>>
>>    1. Everyone has the right to freedom of expression, which includes ­
>>
>> b. freedom to receive or impart information or ideas;
>>
>> c. freedom of artistic creativity; and
>>
>> d. academic freedom and freedom of scientific research.
>>
>>
>> These should be read together so that freedom of scientific research
>> strengthens the right
>>
>> to receive information which is an aspect of the right to benefit from
>> science.
>>
>>
>> You may also want to note that Article 17(2) of the African Charter on
>> Human and Peoples' Rights
>>
>> (http://www.achpr.org/instruments/achpr/#a15) states
>>
>>     Every individual may freely take part in the cultural life of his
>> community
>>
>>
>>
>> Andrew Rens
>>
>>
>>
>> On 26 January 2018 at 02:18, Aslam Raffee <aslamr at gmail.com> wrote:
>>
>>> Hi,
>>>
>>>
>>> South Africa has the following in its constitution
>>> https://www.gov.za/documents/constitution/chapter-2-bill-rights#29,
>>>
>>> Section 30: the right to use the language of one's choice and to
>>> participate in the cultural life of one's choice.
>>> Section 31: the right of cultural, religious or linguistic communities to
>>> enjoy their culture, practise their religion and use their language.
>>> Section 32: the right of access to information, including all information
>>> held by the government.
>>>
>>> 29. Education
>>>
>>>    1. Everyone has the right ­
>>>
>>> a. to a basic education, including adult basic education; and
>>>
>>> b. to further education, which the state, through reasonable measures, must
>>> make progressively available and accessible.
>>>
>>>
>>>    1. Everyone has the right to receive education in the of ficial language
>>>    or languages of their choice in public educational institutions where
>>> that
>>>    education is reasonably practicable. In order to ensure the effective
>>>    access to, and implementation of, this right, the state must consider
>>> all
>>>    reasonable educational alternatives, including single medium
>>> institutions,
>>>    taking into account ­
>>>
>>> a. equity;
>>>
>>> b. practicability; and
>>>
>>> c. the need to redress the results of past racially discriminatory laws and
>>> practices.
>>>
>>>
>>>    1. Everyone has the right to establish and maintain, at their own
>>>    expense, independent educational institutions that ­
>>>
>>> a. do not discriminate on the basis of race;
>>>
>>> b. are registered with the state; and
>>>
>>> c. maintain standards that are not inferior to standards at comparable
>>> public educational institutions.
>>>
>>>
>>>    1. Subsection (3) does not preclude state subsidies for independent
>>>    educational institutions.
>>>
>>> 30. Language and culture
>>>
>>> Everyone has the right to use the language and to participate in the
>>> cultural life of their choice, but no one exercising these rights may do so
>>> in a manner inconsistent with any provision of the Bill of Rights.
>>> 31. Cultural, religious and linguistic communities
>>>
>>>    1. Persons belonging to a cultural, religious or linguistic community
>>>    may not be denied the right, with other members of that community ­
>>>
>>> a. to enjoy their culture, practise their religion and use their language;
>>> and
>>>
>>> b. to form, join and maintain cultural, religious and linguistic
>>> associations and other organs of civil society.
>>>
>>>
>>>    1. The rights in subsection (1) may not be exercised in a manner
>>>    inconsistent with any provision of the Bill of Rights.
>>>
>>> *2 <https://www.gov.za/documents/constitution/chapter-2-bill-rights#2ft
>>>> 32.
>>> Access to information
>>>
>>>    1. Everyone has the right of access to ­
>>>
>>> a. any information held by the state; and
>>>
>>> b. any information that is held by another person and that is required for
>>> the exercise or protection of any rights.
>>>
>>>
>>>    1. National legislation must be enacted to give effect to this right,
>>>    and may provide for reasonable measures to alleviate the administrative
>>> and
>>>    financial burden on the state.
>>>
>>>
>>>
>>> Regards,
>>> Aslam
>>>
>>>
>>> On Fri, Jan 26, 2018 at 6:52 AM, Heesob Nam <hurips at gmail.com> wrote:
>>>
>>>> I'm looking for national constitutions that recognise, directly or
>>>> indirectly, the right to science and culture enshrined in Art. 15 of
>>>> ICESCR and Art. 27 of UDHR.
>>>>
>>>> Mr. President of South Korea pledged to hold a referendum on
>>>> constitutional amendment in this June and this month the advisory
>>>> committee of the National Assembly proposed draft provisions for the
>>>> amendment. The draft provisions include a clause: "everyone has the
>>>> right to enjoy information and culture".
>>>>
>>>> The term "right to enjoy information and culture" first appeared in
>>>> the special report of the National Human Rights Commissions" in 2013
>>>> (English translation can be downloaded at
>>>> https://www.humanrights.go.kr/site/inc/file/fileDownload?
>>>> fileid=1055542&filename=in_BB2014100709303543914011.pdf)
>>>> and its intention was to encompass the right to science and culture.
>>>>
>>>> If your constitutions have any provision to support the right to
>>>> science and culture, please let me know.
>>>>
>>>> Best,
>>>> Heesob
>>>>
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