TWN
Info Service on Intellectual Property Issues (Oct13/05)
4 October 2013
Third World Network
Rights:
Right to science not to be compromised by IPRs
Published in SUNS #7668 dated 4 October 2013
Geneva,
3 Oct (K. M. Gopakumar) -- The United Nations Human Rights Council
is promoting the right to enjoy the benefits of scientific progress
and its applications.
As a follow-up to the Report of the Special Rapporteur in the field
of cultural rights, Farida Shaheed, on the topic, the Council adopted
a Resolution in its 20th Session in July 2012 that included a request
to the Office of the High Commissioner for Human Rights to convene
a seminar. This is now taking place at the Palais des Nations, Geneva,
on 3-4 October 2013.
Article 27(1) of the Universal Declaration on Human Rights guarantees
that "Everyone has the right freely to participate in the cultural
life of the community, to enjoy the arts and to share in scientific
advancement and its benefits". This creates an obligation on
the Member States to take measures to ensure the enjoyment of the
right to enjoy the progress of science and technology.
Article 15.1 (b) of the International Covenant on Economic, Social
and Cultural Rights provides that: "The States Parties to the
present Covenant recognize the right of everyone: ... To enjoy the
benefits of scientific progress and its applications ...".
The ongoing seminar comprises panel discussions and the focus includes:
core content of the right to enjoy the benefits of scientific progress;
states' obligations; country practices in implementation; scientific
freedom; interdependence between the right to enjoy the benefits of
scientific progress and its applications and other human rights (the
rights to food and health as well as the rights of persons with disabilities);
the relationship between the right to enjoy the benefits of scientific
progress and its applications and intellectual property rights (IPRs);
and access to information, technology and knowledge.
The report on the seminar will be submitted to the twenty-sixth session
of the Human Rights Council.
According to the 2012 Resolution, the seminar is "to further
clarify the content and scope of this right and its relationship with
other human rights and fundamental freedoms, including the right of
everyone to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he or
she is the author".
(The Resolution A/HRC/RES/20 is available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/20/11).
The preamble of the Resolution, among other things, reaffirms "the
necessity of an international enabling environment for the conservation,
development and diffusion of science, while preserving, promoting
and giving primacy to public interest".
The Resolution was adopted by the Human Rights Council as a follow-up
to the recommendations in the third report of the Special Rapporteur
in the field of cultural rights, Farida Shaheed.
(http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/134/91/PDF/G1213491.pdf?OpenElement).
SPECIAL RAPPORTEUR CAUTIONS AGAINST MAXIMALIST IP APPROACH
Apart from the introduction, the Report is organised in three parts
viz. the right to benefit from scientific progress and its applications:
legal and conceptual framework; scope, normative content and obligations
of States; areas for further consideration; recommendations.
The Special Rapporteur terms the right to enjoy the benefit from scientific
progress and its applications as "right to science". According
to the Report, "the rights to science and culture should be read
together and in conjunction with, in particular, the right of all
peoples to self-determination and the right of everyone to take part
in the conduct of public affairs".
The Report, after mapping the incorporation of Right to Science in
regional and national human rights instruments, also analyses the
relation of right to science and right to culture. According to the
Report, "the rights to science and to culture should both be
understood as including a right to have access to and use information
and communication and other technologies in self-determined and empowering
ways".
The Report also stresses the relation between right to science and
the realisation of other human rights. In this regard, the Report
states: "The full use of technical and scientific knowledge is
explicitly mentioned in Article 11(2)(a) of the Covenant on Economic,
Social and Cultural Rights with respect to the right to food. The
link with other human rights, such as the rights to health, water,
housing and education, as well as the right to development and the
emerging right to a clean and healthy environment, is also obvious".
Furthermore, the Report states that the scope of right to science
includes not only natural science but also social science. It states
that, "Science must be understood as knowledge that is testable
and refutable, in all fields of inquiry, including social sciences,
and encompassing all research".
Similarly, the terms "benefits" of science and "scientific
progress" convey the idea of a positive impact on the well-being
of people and the realisation of their human rights. The "benefits"
of science encompass not only scientific results and outcomes but
also the "scientific process, its methodologies and tools."
The Report provides a broad interpretation of the terms "science",
"benefits" and "scientific progress".
According to the Report, the normative content of right to science
includes: "(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;
and (d) an enabling environment fostering the conservation, development
and diffusion of science and technology".
On the issue of access to the benefits of science, the Report clearly
recognises the right of access. Therefore, States are under an obligation
under Article 2 of the International Covenant on Economic, Social
and Cultural Rights to make scientific knowledge, information and
advances accessible to all, without discrimination of any kind as
to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. The access
should not be limited to specific scientific outcomes or applications
but science as a whole.
Further, the Report reiterates the two fundamental principles of access,
i. e. physical or geographic access and economic affordability. According
to the Report, "the States should ensure that the benefits of
science are physically available and economically affordable on a
non-discrimination basis".
The Special Rapporteur identified three areas for further consideration:
the right to science and intellectual property (IP); equitable sharing
of benefits and transfer of technologies; and third-party actors and
their obligations.
On the right to science and IP, the Report acknowledges the concern
expressed with regard to the conflict between the right to science
and intellectual property rights, especially in the context of the
Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement
and agreements with TRIPS Plus provisions.
Thus, the Report recognises the conceptual challenge identified in
the Venice Statement on the Right to Enjoy the Benefits of Scientific
Progress and its Applications, which states: "the right to enjoy
the benefits of scientific progress and its applications may create
tensions with the intellectual property regime, which is a temporary
monopoly with a valuable social function that should be managed in
accordance with a common responsibility to prevent the unacceptable
prioritization of profit for some over benefit for all."
According to the Report, "The potential of intellectual property
regimes to obstruct new technological solutions to critical human
problems such as food, water, health, chemical safety, energy and
climate change requires attention."
The Report clarifies that the rights of authors protected under human
rights instruments cannot be equated with intellectual property rights.
Further it states: "The intellectual property regime is a temporary
monopoly that should be managed in accordance with a common responsibility
to prevent the unacceptable prioritization of profit for some over
benefit for all".
In addition, the Special Rapporteur recalls the political pressure
exerted by developed countries against the use of TRIPS flexibilities.
The Report states: "a number of developing countries, while attempting
to implement TRIPS flexibilities to address public health concerns,
have experienced pressures from developed countries and multinational
pharmaceutical corporations".
The Special Rapporteur also calls for a minimalist approach to intellectual
property protection in the Report that, "in accordance with intellectual
property treaties, States must establish ‘minimum standards of protection',
and that surpassing these may not always be compatible with human
rights standards. Furthermore, it is pertinent to assess whether existing
minimum standards accord with human rights standards".
The Report warns against recalibrating intellectual property norms
that may present a barrier to the right to science. The Special Rapporteur
stresses "the need to guard against promoting the privatization
of knowledge to an extent that deprives individuals of opportunities
to take part in cultural life and to enjoy the fruits of scientific
progress, which would also impoverish society as a whole".
The Report also acknowledges works of scholars who question the role
of IP in stimulating scientific creativity.
According to the Report, "Scholars have found no evidence to
support the assumption that scientific creativity is only galvanized
by legal protection or that the short-term costs of limiting dissemination
are lower than the long-term gain of additional incentives".
Therefore, the Special Rapporteur proposes "the adoption of a
public good approach to knowledge, innovation and diffusion"
and "suggests reconsidering the current maximalist intellectual
property approach to explore the virtues of a minimalist approach
to IP protection."
Two important recommendations in the Report that pertain to IP and
Right to Science are the following:
* 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, and
consequently to reconsider the current maximalist intellectual property
approach and explore the virtues of a minimalist approach to intellectual
property protection. States should also further develop and promote
creative mechanisms for protecting the financial interests of creators
and the human rights of individuals and communities;
* States request legislative and policy advice from WIPO (World Intellectual
Property Organisation), including on how to use TRIPS flexibilities
to accommodate particular national interests and development needs.
