Dr. Klaus D. Beiter

Affiliated Research Fellow

Intellectual Property and Competition Law

klaus.dieter.beiter(at)ip.mpg.de

Areas of Interest:

Public international law; international human rights law; economic, social and cultural rights; the right to education; academic freedom; the relationship between IP and international human rights law

Academic Résumé

Born in Windhoek, Namibia. Music studies at the College for the Arts (Windhoek) and the University of South Africa (UNISA) (Pretoria) (1981-1998). Completion of the Toastmasters International Communication and Leadership Program offered by Toastmasters International (California, USA) (1994-1995). B.Iur. degree (1992-1994) UNISA, obtained "with distinction". LL.B. degree (1995-1996) UNISA, obtained "with distinction". Certificate in Law Practice (1997) University of Namibia (Windhoek). Candidate legal practitioner at Olivier's Law Office (Windhoek). Legal Practitioner of the High Court of Namibia since 1998. Certificate in German Law (1999-2000) University of Munich (LMU), average grade: 1. Dr. iur. (2000-2004) University of Munich (LMU), obtained "summa cum laude", studies supervised by Prof. Dr. Bruno Simma, topic of thesis: "The Protection of the Right to Education by International Law". February 2006 - August 2013 Legal Manager of the MPI's journal "International Review of Intellectual Property and Competition Law". As of September 2013 Marie Curie Fellow (EU) at the University of Lincoln, UK - Postdoc on the topic: "Safeguarding Academic Freedom in Europe".

Scholarships

Marie Curie Intra-European Fellowship (EU) for researchers with more than 10 years' research experience, 09/2013-08/2015, Safeguarding Academic Freedom in Europe, University of Lincoln, UK, Lincoln Law School and Centre of Educational Research and Development, Researcher in Charge: Prof. Terence Karran

Stipendium des Deutschen Akademischen Austauschdienstes (1999-2002) für rechtswissenschaftliches Zertifikats- bzw. Promotionsstudium an der Universität München (LMU)

"Masters Exhibition" der University of South Africa (1997) "based on achievement in LL.B. degree; for LL.M. studies" (nicht in Anspruch genommen)

Stipendium des South African Attorneys' Fidelity Fund (1996) "based on achievement in first year of LL.B. studies; for second-year LL.B. studies"

"Honours Exhibition" der University of South Africa (1995-1996) "based on achievement in B.Iur. degree; for LL.B. studies"

Robert Clough Music Scholarship (1991-1994) der University of South Africa, zuerkannt im Anschluss an die Teilnahme an der South African Music Scholarship Competition 1990 (nur 1991 in Anspruch genommen)

Academic Prizes and Honours

Fakultätspreis für Doktorarbeit (2004), Universität München (LMU)

Johannes-Voet-Medaille (1996), Pretoria Society of Advocates, "Jahrgangsbester - LL.B.-Grad"

"Prize for the Best Final-Year LL.B. Student" (1996), University of South Africa

"Prize for the Best Pre-Final-Year LL.B. Student" (1995), Butterworth Publishers

Constitutional Law Prize (1995), University of South Africa, bester Abschluss im Fach , "Verfassungsrecht"

Mercantile Law Prize (1994), University of South Africa, bester Abschluss im Fach "Handelsrecht"

Private Law Prize (1994), University of South Africa, bester Abschluss im Fach "Privatrecht"

Publications

Books and Monographs

The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (International Studies in Human Rights, 82), Martinus Nijhoff Publisher, Leiden/Bosten 2006, 766 pp.

    Contributions to Collected Editions, Commentaries, Handbooks and Encyclopaedias

    Access to Textbooks in Developing Countries, Copyright, and the Right to Education – Embracing Extraterritorial State Obligations in Intellectual Property Law, in: Daniel J. Gervais (ed.), Fairness, Morality and Ordre Public in Intellectual Property (ATRIP Intellectual Property series ), Edward Elgar, Cheltenham, UK; Northampton, MA, USA 2020, 96 - 123.

      Kapitel 2 - Analyse Primärrecht, in: Reto M. Hilty, Thomas Jaeger (eds.), Europäisches Immaterialgüterrecht - Funktionen und Perspektiven (MPI Studies on Intellectual Property and Competition Law, 26), Springer, Berlin; Heidelberg 2018, 59 - 144 (together with Oliver Fischer et al.). DOI

        Establishing Conformity Between TRIPS and Human Rights: Hierarchy in International Law, Human Rights Obligations of the WTO and Extraterritorial State Obligations Under the International Covenant on Economic, Social and Cultural Rights, in: Hanns Ullrich et al. (ed.), TRIPS plus 20 - From Trade Rules to Market Principles (MPI Studies on Intellectual Property and Competition Law, 25), Springer, Berlin; Heidelberg 2016, 445 - 505. DOI

        • The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in its design and implementation procedures, does not reflect a human rights approach. There is an ever-growing community of critical voices, however, requiring that human rights should serve as a corrective to intellectual property rights and their implementation in the context of TRIPS. The crucial question is, of course, how this goal may be accomplished. Under TRIPS, human rights constitute non-essential exceptions to intellectual property rights. However, obligations under international human rights law (IHRL) can only be a relevant consideration if either the World Trade Organisation (WTO) itself or its members, when acting as such—or both—are bound by IHRL. If this should be the case, the question as to the exact relationship between the norms under TRIPS and those of IHRL will arise. Is IHRL hierarchically superior to WTO law? This chapter will show that both the WTO and its members, as such, are the bearers of obligations under IHRL and that, in many instances, norms of IHRL will have to be held to rank above “international trade law”. This should have consequences in particular for the way the WTO enforces TRIPS within its dispute settlement system. The rules of treaty interpretation under customary international law (as codified in Article 31 of the Vienna Convention on the Law of Treaties of 1969) offer substantial scope for human rights considerations to play a role in WTO dispute settlement. Attempts at establishing conformity between TRIPS and IHRL should, moreover, take account of extraterritorial obligations flowing from the various UN human rights treaties, specifically also the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, and their implications for state conduct. States parties to the ICESCR are not only obliged to observe Covenant provisions where the effects of any of their actions are confined to the domestic level, but also if their conduct, for example within the WTO, affects the economic, social and cultural rights (ESCR) of populations in other countries. The Committee on Economic, Social and Cultural Rights (CESCR), the body of independent experts supervising implementation of the ICESCR—which so far has proven highly capable of advancing the cause of ESCR globally—should adopt a more proactive approach in defining extraterritorial obligations under the ICESCR, also in relation to WTO law, and should further be bold enough to adopt a clear stance in cases of conflict between TRIPS and IHRL.

        Journal Articles

        Reductionist Intellectual Property Protection and Expansionist (and 'Prodevelopment') Competition Rules as a Human Rights Imperative? Enhancing Technology Transfer to the Global South, The Law and Development Review 14, 1 (2021), 215 - 272. DOI

        • Increasingly, the economy of industrialised countries moves away from being based on a multiplicity of independent innovators to one characterised by cross-licensing and the pooling of intellectual property (IP) rights. Competition law is accorded a more limited role. Refusals to license or restrictive licence terms are tolerated. This paradigm emphasises the innovation at the expense of the dissemination rationale of IP and competition law. The pressure on developing countries is to follow suit. However, this approach jeopardises overcoming the technology dependence of these states. Yet, the political consensus underlying the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was that, in exchange for IP rights protection, a transfer and dissemination of technology benefiting the global South would occur. This has not taken place so far. Taking this promise seriously requires according an enhanced, more social role to competition law. Articles 8(2), 31 and 40 of TRIPS – the TRIPS competition rules – could be interpreted in a way to accomplish this. This article argues in favour of a “prodevelopment” approach to IP-related competition law. This could be viewed as a demand of the rule of law at the international level. On the one hand, treaties such as TRIPS are to be interpreted in good faith. On the other, public interest and human rights considerations justify, as it were, require, such an approach. Articles 7 and 8 of TRIPS can play a crucial role in this regard. They reflect such public interest considerations as “object and purpose” of TRIPS. They also provide a link to international human rights law (IHRL). IHRL protects a (group) right to development, confirming “policy space” for World Trade Organization (WTO) members and the freedom to opt for a competition law model that facilitates dissemination. The International Covenant on Economic, Social and Cultural Rights (ICESCR) further protects various economic, social and cultural rights, including the right to enjoy the benefits of scientific progress and its applications (REBSPA). These rights may be said to give rise to “transfer and dissemination of technology” as a human right. Duties under the right to development and “territorial” and “extraterritorial” human rights obligations (ETOs) under the ICESCR support an understanding of competition law which is pro development, which takes account of local access and welfare needs. The article concludes with a set of 10 consolidated considerations for a “prodevelopment” IP-related competition law.

        Not the African Copyright Pirate is Perverse, but the Situation in Which (S)He Lives: Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization 'from below' in IP Law, Buffalo Human Rights Law Review 26 (2020), 1 - 79.

        • Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners' native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. How- ever, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law. Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state obligations (ETOs) under international human rights law (IHRL), that is, of states, in appropriate circumstances, bearing human rights obligations toward those living beyond their own territory. This reluctance is regrettable if it is borne in mind that most IP, including copyright law originates at the international level, where each state plays a role in designing rules that may affect the lives of those in other countries. ETOs could assume a key function in "civilizing "-as it were, "constitutionalizing "-IP law. This Article will demonstrate the significance of ETOs for IP law by focusing on the issue of how the right to education under IHRL prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a "constitutionalization" of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research.

        Extraterritorial Human Rights Obligations to ‘Civilize’ Intellectual Property Law: Access to Textbooks in Africa, Copyright, and the Right to Education, Journal of World Intellectual Property 23, 3-4 (2020), 232 - 266. DOI

        • Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in local languages. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute elements of the right to education under international human rights law (IHRL). Extraterritorial state obligations (ETOs) under IHRL—obligations of states, in appropriate circumstances, to observe the human rights of those beyond their borders—could assume a key function in “civilizing” intellectual property (IP) law. This Article demonstrates the significance of ETOs for IP law by focusing on the issue of how ETOs under the right to education of IHRL prescribe requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well‐known typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept is introduced and 20 typical ETOs relevant in this context are identified. The discussion relates to the situation in developing countries more generally, focuses, however, on Africa.

        Where Have All the Scientific and Academic Freedoms Gone? And What Is 'Adequate for Science'? The Right to Enjoy the Benefits of Scientific Progress and Its Applications, Israel Law Review 52, 2 (2019), 233 - 291. DOI

          Is the Age of Human Rights Really Over? The Right to Education in Africa – Domesticization, Human Rights-Based Development, and Extraterritorial State Obligations, Georgetown Journal of International Law 49, 1 (2017), 9 - 88.

            The Doctrinal Place of the Right to Academic Freedom Under the UN Covenants on Human Rights, University values - a bulletin on international academic freedom, autonomy and responsibility 2011, 5 - 7.

            Lessons from Lisbon: The Potential, Necessity and Pitfalls of a Primary Law Reform - An Assessment in the Light of Intellectual Property Law, The European legal forum / Section 1 9, 2 (2009), I-90 - I-108 (together with Oliver Fischer et al.).

              The Right to Property and the Protection of Interests in Intellectual Property – A Human Rights Perspective on the European Court of Human Rights' Decision in Anheuser-Busch Inc. v. Portugal, IIC 39, 6 (2008), 714 - 721.

                Case notes

                Kein Zugriff auf rechtswidrige Beihilfen – Zugleich Anmerkung zum Urteil CELF II, Ecolex 21 (2010), 505 - 510 (together with Thomas Jaeger).

                  Lectures

                  14.04.16 - 15.04.16

                  Patentability and Disclosure (Keynote)

                  Research Seminar organised under the auspices of the South African Research Chair in Law, Society and Technology, hosted by the College of Law, University of South Africa

                  On the Declaration on Patent Protection – Regulatory Sovereignty under TRIPS (drafted under the auspices of the Max Planck Institute for Innovation and Competition)

                  Location: University of South Africa, Pretoria


                  14.04.16 - 15.04.16

                  Compulsory Licenses and Government Use under TRIPS (Keynote)

                  Research Seminar organised under the auspices of the South African Research Chair in Law, Society and Technology, hosted by the College of Law, University of South Africa

                  On the Declaration on Patent Protection – Regulatory Sovereignty under TRIPS (drafted under the auspices of the Max Planck Institute for Innovation and Competition)

                  Location: University of South Africa, Pretoria


                  27.09.15 - 30.09.15

                  Please Mind the Gap!’ – Drafting a Declaration on Establishing Conformity between Intellectual Property Regimes and International Human Rights Law

                  34th Annual Congress of the International Association for the Advancement of Teaching and Research in Intellectual Property Law

                  Location: Cape Town, South Africa


                  29.09.14 - 30.09.14

                  Establishing Conformity between TRIPS and Human Rights

                  2014 Association of Human Rights Institutes (AHRI) Human Rights Research Conference

                  Location: Copenhagen, Denmark


                  14.04.14 - 15.04.14

                  TRIPS and Human Rights: Conflict or Coexistence?

                  Symposium “TRIPS ’94 + 20: Beyond Trade Rules”

                  Location: Max Planck Institute for Innovation and Competition, Munich, Germany


                  16.01.12 - 17.01.12

                  Academic Freedom and the Right to Freedom of Movement: Recognising the Right to Academic Mobility

                  Istanbul Conference on Academic Freedom: Second Meeting of the "International Academic Freedom Research and Advocacy Team", NGO Scholars at Risk (New York University)

                  Location: Bilgi University, Istanbul


                  03.10.11 - 04.10.11

                  Promoting Academic Freedom: Travel Restrictions

                  "Courage to Think: Dialogues with Provocative Minds - In Celebration of the 10th Anniversary of the Scholars at Risk Network"

                  NGO Scholars at Risk (New York University)

                  Location: New York University


                  01.03.11 - 03.03.11

                  Academic Freedom and the Right to Education

                  Bellagio Conference on Academic FreedomFirst Meeting of the International Academic Freedom Research and Advocacy Team, NGO Scholars at Risk (New York University): "Defending Global Knowledge: Convening a Global Academic Freedom Advocacy Team"

                  Location: Bellagio Centre / Rockefeller Foundation


                  02.12.08

                  Studiengebühren im Hochschulwesen und der UN-Pakt über wirtschaftliche, soziale und kulturelle Rechte

                  Lecture series on "Economic, Social and Cultural Human Rights" of the German Institute for Human Rights

                  Location: German Institute for Human Rights, Berlin

                  Courses

                  WS 2019 / July - December 2019

                  Intellectual Property Law (IURE 422)

                  Elective modul for 4h academic year, LL.B. Degree

                  Location: North-West University, Potchefstroom, South Africa


                  WS 2016 / July - December 2016

                  Intellectual Property Law (IURE 422)

                  Elective module for 4th academic year

                  Location: North-West University, Potchefstroom, South Africa


                  SS 2016 / 01.04.16 - 30.09.16

                  Intellectual Property Law

                  Elective module for LL.B. students

                  Location: North-West University, Potchefstroom, South Africa


                  SS 2013 / 01.04.13 - 30.09.13

                  International Protection of Human Rights

                  Seminar in the field of Public International Law: International Protection of Human Rights

                  Law Studies - Auxiliary Programme

                  Location: LMU Munich


                  WS 12/13 / 01.10.12 - 31.03.13

                  International Protection of Human Rights

                  Seminar in the field of Public International Law: International Protection of Human Rights

                  Law Studies - Auxiliary Programme

                  Location: LMU Munich


                  SS 2012 / 01.04.12 - 30.09.12

                  International Protection of Human Rights

                  Seminar in the field of Public International Law: International Protection of Human Rights

                  Law Studies - Auxiliary Programme

                  Location: LMU Munich


                  WS 11/12 / 01.10.11 - 31.03.12

                  International Protection of Human Rights

                  Seminar in the field of Public International Law: International Protection of Human Rights

                  Law Studies - Auxiliary Programme

                  Location: LMU Munich


                  SS 2011 / 01.04.11 - 30.09.11

                  International Protection of Human Rights

                  Seminar in the field of Public International Law: International Protection of Human Rights

                  Law Studies - Auxiliary Programme

                  Location: LMU Munich

                  Participation in projects

                  Member of the "International Academic Freedom Research and Advocacy Team" of the NGO Scholars at Risk (New York University) - the working group carries out pilot projects aimed at gaining insights, the implementation of which will strengthen academic freedom on a global scale - leader of project on: "Travel Restrictions Violating Academic Freedom"

                  Marie Curie Intra-European Fellowship, 09/2013 - 08/2015, Safeguarding Academic Freedom in Europe, University of Lincoln, UK, Lincoln Law School and Centre of Educational Research and Development, Researcher in Charge: Prof. Terence Karran - This research addresses a fundamental human right and a key element of the creation of a European knowledge economy: academic freedom. Universities are vital elements in the construction of a European knowledge economy, while academic freedom is considered essential to the proper functioning of a university and is recognised by international bodies such as UNESCO as a barometer of other more fundamental human rights, like freedom of speech. This research involves an analysis of requirements regarding academic freedom under international human rights law and further a synthesis of the constitutional and statutory protection for academic freedom in Europe with measures of academic norms and departmental cultures, to produce a comparative assessment of the protection for, and health of, academic freedom in Europe (currently a much under-researched field); and an analysis of best practice for the legal/normative protection of academic freedom in Europe, which can then aid the construction of interactive interrogatory tools and institutional and national policy instruments, to be disseminated across European universities, and beyond. The project unites the Fellow, who has a wide knowledge of international human rights law with respect to education, with the Researcher in Charge, who has experience and expertise in assessing the protection of academic freedom in different states, to produce new knowledge on the extent of the legal and normative protection for academic freedom in Europe. In the medium-term effect this research will increase the protection for academic freedom in Europe at national and institutional levels. The long term effects are: first, enhanced understanding of the strength of the human rights associated with academic freedom, more particularly, freedoms of thought, speech, and the right to education in international law; second, the facilitation and encouragement of the creation of new knowledge, more especially at the interstices of different disciplines that have traditionally experienced subject and departmental based barriers to collaboration.