AAAS Scientific Responsibility, Human Rights and Law Program

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Report on Science and Human Rights

Winter 2002 Vol XXII, No. 1

Intellectual property is a generic term that refers to intangible objects, such as literary works, artistic productions, scientific discoveries and plans for inventions and designs, which acquire their value primarily from creative efforts. Just as raw materials and labor were key resources in the first industrial revolution, intellectual "commodities" - knowledge, creative works, and scientific discoveries - are critical assets in the contemporary global economy. Therefore, the manner in which creative works, cultural heritage, and scientific knowledge are turned into property has significant human rights implications.

Recently, the human rights community and various UN agencies have begun to explore the implications of intellectual property protections for the realization of human rights. To mark the fiftieth anniversary of the Universal Declaration of Human Rights in 1998, the World Intellectual Property Organization (WIPO) and the Office of the UN High Commissioner for Human Rights held a seminar on Intellectual Property and Human Rights and then published a volume on that topic.1 The UN Sub-Commission for the Promotion and Protection of Human Rights adopted resolutions on this subject at its sessions in both 2000 and 2001.2 At the request of the Sub-Commission, the High Commissioner for Human Rights prepared a report on the human rights impacts of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) of the World Trade Organization (WTO) and on more general issues related to intellectual property and human rights.3 Like much of the activism among NGOs related to these issues, the High Commissioner's report focused on the impact of the TRIPS Agreement on the right to health.

The UN Committee on Economic, Social and Cultural Rights (the Committee) held a day of general discussion in November 2000 on intellectual property and human rights. The Committee then decided to proceed with drafting a statement setting a normative framework for a human rights approach to intellectual property, which it adopted at its November 2001 session.4 The Committee also plans to prepare a more comprehensive general comment interpreting the provisions of the International Covenant on Economic, Social and Cultural Rights (the Covenant) relevant to protecting the rights and interests of authors, artists, and inventors (Article 15 (1) (c)).

The Science and Human Rights Program has been centrally involved with these efforts. I was asked by WIPO to prepare a paper on "A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science," which was published in the WIPO volume, and I made a presentation on this topic at the 1998 WIPO seminar. I have also served as an expert/consultant for the Committee on the relationship between intellectual property and human rights. In that capacity, I wrote the background paper the Committee used as the framework for the 2000 day of general discussion5 and played a major role in drafting the Committee's 2001 statement. In addition, the Program has been granted observer status for WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (Second Session). SHR staff member Stephen Hansen attended this committee's most recent meeting in Geneva in December 2001, and offered a human rights perspective in the discussions.

Why is the human rights community belatedly turning its attention to intellectual property issues? These initiatives reflect the growing significance of ownership and control of intellectual property in the shift to an information or knowledge based economy, as well as growing awareness of the implications for the realization of human rights. The manner in which creative works, cultural heritage, and scientific knowledge are turned into property has significant human rights implications. Legal regimes defining the nature of intellectual property and the types of protection that accrue to its creators and owners can either facilitate or constrain the realization of the human rights enumerated in the major international human rights instruments. This is particularly the case for the economic, social, and cultural rights enumerated in the Covenant.

Although intellectual property protections have a long history, in recent years intellectual property regimes have been strengthened and the subject matter considered to be eligible for intellectual property protection has been expanded. Restrictions and limitations which previously excluded some subject matter such as biological entities, from patenting have been eliminated. Other expansions have resulted from adapting legal instruments to fit new situations and technologies, as for instance efforts to extend copyright print protections into the digital domain. The extension of private intellectual property claims into the public domain has resulted in the privatization of works of cultural heritage and of the biological and ecological knowledge of traditional peoples. These developments have generally favored industrialized and affluent countries and transnational corporations and have disadvantaged poorer and less developed countries.

Further, the establishment of the World Trade Organization in 1994 and the coming into force of the TRIPS Agreement in 1995 have strengthened the global character of intellectual property regimes. Historically, intellectual property law was developed on a national basis, with considerable diversity in the nature and stringency of protections. In recent years, industrialized countries have pushed for increased protection of intellectual property and the establishment of a global intellectual property system. The TRIPS Agreement, which was a product of the Uruguay Round of trade negotiations, is binding in toto on all members of the WTO. It sets mandatory minimum standards that require States to implement common and often expanded intellectual property protections covering copyright of literary, musical, and artistic works and industrial property rights related to technology in the form of patents over products and processes; trademarks; geographical indications; industrial designs; and sometimes trade secrets or undisclosed commercial information.6 The comprehensive rules governing such intellectual property protection are subject to international legal interpretation and enforcement through WTO's dispute settlement panels. Provisions of the TRIPS Agreement therefore make it far more difficult for countries to set intellectual property standards and policies to fit domestic economic conditions, as well as to protect human rights and the environment.

These developments have provided incentives for the human rights community to consider the implications of human rights provisions in several international instruments. Beginning with Article 27 of the Universal Declaration of Human Rights, international human rights instruments have enumerated the right of authors, creators, and inventors to some form of recognition and benefit from their intellectual products. Similarly, Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR or the Covenant) requires States parties, the countries that have ratified this instrument, to recognize the right of everyone "to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

In both instruments, however, realization of these rights has been made conditional on protecting and promoting other rights. Article 15 of the Covenant, as well as Article 27 of the UDHR, specify that intellectual property claims must be balanced with the right of everyone to enjoy the benefits of scientific advancement and cultural rights. Moreover, Article 15 (2) of the Covenant mandates that States parties undertake steps necessary for the conservation, development, and diffusion of science and culture.

Thus, a human rights approach to intellectual property has a fundamentally different character from commercial intellectual property rights. Ultimately, a human rights approach requires that intellectual property protection serve the objective of human well-being, to which the international human rights instruments give legal expression. Human rights are inalienable and universal claims belonging to individuals, and in some situations, to communities, but never to corporations. Human rights are understood to exist independently of recognition or implementation while intellectual property rights are granted by the State according to criteria defined by national legislation. In contrast with human rights, which establish permanent and irrevocable entitlements, intellectual property rights are temporary; they exist for a limited period and can be revoked, licensed or assigned to someone else.

The resolutions of the Sub-Commission and the Statement on Intellectual Property and Human Rights adopted by the Committee, as well as the activism of human rights advocates, also reflect the realization that current intellectual property developments do not take into account the protection of fundamental human rights. Moreover, intellectual property protections can inhibit the realization of fundamental human rights, particularly the rights included in the Covenant. The Committee's November 2000 day of general discussion highlighted potential or actual problems related to realization of the right to food, the right to health, the right to the benefits of science and its applications, the right to cultural participation, the right to self-determination, and the human rights of indigenous peoples.7 The recent report of the High Commissioner expands on work already done by nongovernmental organizations, the World Health Organization (WHO) and UNAIDS to consider ways in which the TRIPS Agreement may negatively affect enjoyment of the right to health, in particular by reducing access to pharmaceuticals or increasing their cost.8

The statement adopted by the Committee in November 2001 is aimed at encouraging the integration of human rights into the development and interpretation of intellectual property regimes. To that end, it sets forth the human rights principles, norms, and requirements that should govern these regimes. These principles include the following:

• the type and level of protection afforded under any intellectual property regime should facilitate and promote all human rights, including the full range of economic, social and cultural guarantees specified in the Covenant;
• the scope of protection of the moral and material interests of the author provided for under Article 15 of the Covenant stems from the recognition of fundamental human dignity and differs in nature from what is termed intellectual property rights under national legislation or international agreements;
• States have a fundamental obligation in designing international treaties or national legislation for the protection of intellectual property to take into account their concurrent human rights obligations to implement at least the minimum essential levels of each of the rights in the Covenant and to realize them progressively;
• all actors are accountable for their obligations under human rights law, specifically with regard to the design, development, interpretation and implementation of intellectual property systems;
• human rights principles of equality and non-discrimination must be reflected in the nature of the intellectual property protections adopted;
• because human rights focus on the needs of the most disadvantaged and vulnerable individuals and communities, intellectual property systems should provide adequate protection for the human rights of disadvantaged and vulnerable individuals and groups, such as indigenous peoples;
• while all States agree, upon ratification of or accession to any international treaty, to relinquish a degree of national autonomy, it is important in negotiating international treaties on intellectual property protection to consider how they will affect States' sovereignty over wealth and resources and their ability to protect the rights under the Covenant;
• States need to balance public and private interests in knowledge so that in providing incentives for creation and innovations, private interests do not take undue advantage of the public's interest in broad access to new knowledge;
• the right of everyone to be consulted and participate in significant decision-making processes includes the design of intellectual property systems;
• intellectual property protections should recognize the disparate needs of countries at differing levels of development in order to facilitate and promote development, technology transfer, and scientific and cultural collaboration.

The AAAS Science and Human Rights Program has several projects in the planning stages or underway that consider intellectual property protection from a human rights perspective. We hope to involve interested members of the human rights community in these efforts as they take shape.

1. Intellectual Property and Human Rights (Geneva: World Intellectual Property Organization and the Office of the United Nations High Commissioner for Human Rights, 1999), WIPO Publication No. 762(E).

2. Sub-Commission for the Promotion and Protection of Human Rights, resolutions 2000/7 and 2001/21.

3. "The impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights: Report of the High Commissioner," E/CN.4/Sub.2/2001/13, 27 June 2001.

4. "Human Rights and Intellectual Property Issues: Statement by the Committee on Economic, Social and Cultural Rights," 26 November 2001, E/C.12/2001/15.

5. Audrey R. Chapman, "Approaching Intellectual Property as a Human Right: Obligations Related to Article 15 (1) (c)." E/C.12/2000/12.

6. By July 2001 140 States were members of the WTO. Another 30 States, including China and Russia, are in the process of negotiating their access.

7. The background paper prepared for the Committee and the discussion by participants documented this concern. See, Audrey R. Chapman, "Approaching Intellectual Property as a Human Right: Obligations Related to Article 15 (1) (c)." E/C.12/2000/12.

8. Report of the High Commissioner, "The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights."