Service on Health Issues (Oct15/07)
UN Special Rapporteur on right to culture recommends new IP regime for pharmaceuticals
Geneva, 12 October (K M Gopakumar) – The United Nations Special Rapporteur in the field of right to culture, Ms Fareeda Shaheed, recommends a new intellectual property regime for pharmaceutical products stressing that there is no human right to patent protecton.
This recommendation is made in her latest report to the current 70th Session of the UN General Assembly. The report titled “Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms” is available here: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N15/243/83/PDF/N1524383.pdf?OpenElement
The Special Rapporteur recommends “the United Nations should convene a neutral, high-level body to review and assess proposals and recommend a new intellectual property regime for pharmaceutical products that is consistent with international human rights law and public health requirements, and simultaneously safeguards the justifiable”. This is drawn from the recommendation of the Global Commission on HIV and the Law appointed by the UN Development Programme (UNDP).
[The UNDP-appointed Global Commission made the following recommendation with regard to patents and access to medicines: “The UN Secretary-General must convene a neutral, high-level body to review and assess proposals and recommend a new intellectual property regime for pharmaceutical products. Such a regime should be consistent with international human rights law and public health requirements, while safeguarding the justifiable rights of inventors. … Pending this review, the WTO (World Trade Organization) Members must suspend TRIPS (Trade-Related Aspects of Intellectual Property Rights Agreement) as it relates to essential pharmaceutical products for low- and middle-income countries.]
Two other important recommendations are:
The report focuses on patent policy for the enjoyment of the right to science as provided in Article 15 1 (b) of the International Covenant on Economic Social and Cultural Rights (ICESCR), which establishes that State Parties recognise the right of every one “To enjoy the benefits of scientific progress and its applications”.
The Report in its conclusion states:
“A model of access to technology based on individual ability to pay is rational and legitimate from a purely commercial perspective. From a human rights perspective, however, deprivations through patent exclusivity may be deemed as arbitrary, discriminatory or disproportionate, depending on the extent to which human rights interests are implicated by the specific technologies at stake, and the degree to which patent exclusivity, rather than production costs, create the high prices.
The obligations of States under intellectual property treaties must not jeopardize the implementation of their obligations under human rights treaties. Implementing unreasonably strong patent protection may constitute a violation of human rights.
The human right to science and culture, as enshrined in Article 27 of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights, requires measures to ensure the affordability of and accessibility to technologies that are essential for a life with dignity and support ting the realization of other human rights”.
The Special Rapporteur’s report examines the following issues prior to making the conclusions and recommendations:
The report is part of the Special Rapporteur’s examination of impact of intellectual property (IP) regimes on the right to science and culture. Earlier the Rapporteur submitted a report to the 28th Session of the Human Rights Council titled “Copyright policy and the right to science and culture”. Both reports can be found http://www.ohchr.org/EN/Issues/CulturalRights/Pages/AnnualReports.aspx
Normative Framework of Right to Science
In the introduction the Special Rapporteur recognises the relationship between human rights and IP as “important and complex” and states, “The last decades have witnessed growing concern that the design and implementation of intellectual property laws may undermine the enjoyment of human rights”. According to the Special Rapporteur, apart from the tension between patents and right to health the patent policy in the area of agriculture, energy saving and climate change technologies is feared to threaten enjoyment of right to food and right to a safe and sustainable environment. The Special Rapporteur states that Article 15.1 of ICESCR provides a framework to “reconcile the tension between human rights and Intellectual property laws”.
The Special Rapporteur defines the normative content of right to science as:
“a) access to the benefits of science by everyone without discrimination;
(b) opportunities for all to contribute to the scientific enterprise and freedom indispensable for scientific research;
(c) participation of individuals and communities in decision-making;
(d) an enabling environment fostering the conservation, development and diffusion of science and technology”.
Further she stated that “the spirit of the human right to science and culture recognizes human knowledge as a global public good and recommended that States guard against promoting the privatization of knowledge to an extent that deprives individuals of opportunities to take part in cultural life and enjoy the fruits of scientific progress”.
The Special Rapporteur notes the shift in the international patent regime from the 1970’s to the TRIPS Agreement, which ignores the diversity of national needs. The Rapporteur also notes that in response to flexibilities in the TRIPS Agreement corporations and some developed States “have pushed since its inception for a wider and stronger set of standards through add-on agreements, often called TRIPS-Plus treaties or provisions”.
Conveying clearly a sceptical view on the so-called benefits of the TRIPS agreement such as increase in research and development investment, rewarding human creativity, disclosure of invention and developing of new technologies the Special Rapporteur states: “These claims need to be carefully weighed, taking into consideration the various interests at stake and the technologies in question (for example, some require expensive research, some do not). The effects of intellectual property rights are strongly context-dependent. It is not possible to expect the same outcomes in countries with very different levels of technological capacity and industrial profile.”
Aggressive patenting practices exploit such administrative weaknesses. The practice of patent “trolling” and the proliferation of patents thickets, where the right-holder’s aim is not to manufacture any product or use the process, but to launch frivolous lawsuits and collect fees based on ambiguous patent claims or exclude others from developing competing technologies, obstruct further development and dissemination of technology. High numbers of low-quality patents hinder research, legitimate competition and access to technology.
The Rapporteur also points out that the patenting of new use or ever greening of patents would result in the extension of the patent life beyond the 20 years set out in the TRIPS Agreement.
She further expresses concern over the appropriation of scientific knowledge and states: “The appropriation of scientific knowledge through patents (such as patents on genes) and the patenting of discoveries (that is, pre-existing information versus inventions); of frivolous innovations; and the practice of misappropriation of indigenous and local communities’ innovations through patents is equally of concern”.
Inventors under Article 15 .1 (c) of ICESCR
Even acknowledging the fact that the Committee on Economic, Social and Cultural Rights considers the term ‘author’ to also include the creator of scientific innovations the Special Rapporteur refutes the claim that Article 15 1 (c) of ICESCR recognises intellectual property rights as a human right. According to the Special Rapporteur, “The equation of intellectual property regimes with the human right to protection of the moral and material interests of authors is false and misleading”.
Further she stresses that, “… intellectual property rights primarily protect business and corporate interests and investments”. Even though the report recognises the use of the term author in Article 15 1 (c) of the ICESCR to include inventors and scientific discoveries the right is limited to the moral and material rights of the inventions “with which they have a strong personal link similar to the link between an author in the traditional sense and their creative work of authorship”. Further the report states that, “This right does not provide patent holders’ grounds to challenge patent rules as providing inadequate protection of their financial or commercial interests. Nor can the right to protection of moral and material interests be used by States to defend patent laws that inadequately respect the right to science and culture”.
In the context of indigenous peoples the Report states: “International and national intellectual property regimes have historically failed to adequately take into account the concerns of indigenous peoples and local communities. The interests in maintaining control over non-commercial, communally created and historically rooted cultural assets tend to fall through the cracks of intellectual property regimes”. In this regard the Special Rapporteur acknowledges the work of the World Intellectual Property Orgainization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore but remarks that the “progress seems uncertain”.
Tension between Patent Policy and Right to Science
According to the Special Rapporteur the right to science in Article 15.1(b) clearly includes patented technologies. The Report clearly states: “The human rights perspective demands that patents do not extend so far as to interfere with individuals’ dignity and well-being. This may be the case, for example, when the patent-holder’s property right is so strong as to make compulsory licensing of medicines impracticable or unduly cumbersome.”
The Special Rapporteur highlights the adverse impact of patenting in the area of pharmaceuticals, food, energy, information and communication technologies, nanotechnologies and synthetic biology. Further the Report states that lack of access to technology affects the enjoyment of the right to participate in political, social, economic and cultural life of society. According to the Special Rapporteur “Interrogating the impact of patent policy on the right to science cannot be dissociated from interrogating its impact on the right to participate in cultural life and to pursue specific ways of life, such as in the case of small farmers”.
Right to Science: Forward
According to the Special Rapporteur, “States must ensure that their patent laws are well-designed to promote the right of the public to participate in scientific progress, both through universal access to essential technologies and by eliminating or overcoming barriers to scientific research and technological development”. Towards this purpose the Report calls upon governments to use flexibilities. It states: “It is crucial that international legal regimes on patents continue to leave room for countries to adopt and implement policies to abide by their human rights obligations”.
On flexibilities the Report emphasizes: “Although exclusions, exceptions and flexibilities are fully part of international intellectual property law, such as the TRIPS Agreement, they remain optional from the perspective of trade law. From the perspective of human rights, however, they are often to be considered as obligations”.
The Report makes recommendations on the following areas: ensuring transparency and public participation in law making, ensuring the compatibility of patent laws, policies and practices with human rights, exclusions, exceptions and possibilities, adopting policies fostering the right to science and culture including the right to science and culture including the right to scientific freedom and indigenous peoples and local communities.
Some of the important recommendations are: