[Ip-health] “No Human Right To Patent Protection,” Says UN Rapporteur On Cultural Rights

[Elizabeth Rajasingh]

“No Human Right To Patent Protection,” Says UN Rapporteur On Cultural Rights

http://www.ip-watch.org/2015/10/08/no-human-right-to-patent-protection-un-rapporteur-on-cultural-rights-says/

Posted By Catherine Saez On 08/10/2015 @ 3:55 pm

In a new report, the United Nations Special Rapporteur in the field of
cultural rights examines the implications of patent policy for the right to
science and culture. She gives a number of recommendations calling for
countries to refrain from granting stringent patent protection, and respect
their human right obligations.

“There is no human right to patent protection,” Special Rapporteur Farida
Shaheed said in a report published today. The report comes as the UN World
Intellectual Property Organization is holding its annual General Assembly.

According to the report, the right to protection of moral and material
interests cannot be used to promote patent laws which do not respect the
right of people to participate in cultural life, enjoy the benefits of
scientific progress and its applications, to scientific freedom, as well as
the right to food and health, and the rights of indigenous peoples and
local communities.

Patents, although being one policy tool to encourage innovation and
technological research and development, can give their holders “the power
to deny access to others, limiting or denying the public’s right of
participation to science and culture,” the report says. “Where patent
rights and human rights are in conflict, human rights must prevail,” the
special rapporteur said.

The report provides a list of recommendations for countries to follow. In
particular, Shaheed said that even though a model of access to technology
based on the individual ability to pay can be understood from a purely
commercial perspective, from a human rights perspective, “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,” she said. Implementing “unreasonably strong patent protection
may constitute a violation of human rights.”

R&D De-linkage, Flexibilities, LDC Request

She also said that patent-holding companies in the pharmaceutical sector
“should disclose information about the costs for developing drugs, the
items included in such costs and the sums they reinvest in research and
development.”

According to the report, “States and other stakeholders should explore,
especially in the area of health and food security, systems that delink the
costs of research and development from the price of products, in particular
medicines.”

Shaheed also said, “States have a positive obligation to provide for a
robust and flexible system of patent exclusions, exceptions and
flexibilities based on domestic circumstances, including through the
establishment of compulsory and government use licences when needed.”

She discouraged states from adopting or accepting “TRIPS-plus” provisions
which would impede those countries from using flexibilities in the World
Trade Organization Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS). TRIPS-plus refers to intellectual property
provisions going further than the TRIPS rules.

She also warned against states “pressuring other States to adopt TRIPS-plus
provisions or to otherwise forego the use of TRIPS-compliant
flexibilities….”

Echoing the request by least developed countries (LDCs) to the TRIPS
Council to accept an indefinite extension of the countries’ TRIPS waiver on
pharmaceutical products, she said WTO members “should ensure the exemption
of least developed countries from complying with the TRIPS Agreement
provisions until they reach a stage of development where they no longer
qualify as least developed countries.”

LDCs had asked for a permanent general exemption in 2013 with the same
terms, but it was barred by some developed countries. An LDC general waiver
runs until 2021.

Shaheed also considered the rights of indigenous peoples and local
communities over their biocultural heritage and encouraged states to
prohibit unethical and/or unlawful appropriation through patents.

She called for states to ensure that “traditional knowledge associated with
genetic resources that is held by indigenous and local communities is
accessed with the free, prior and informed consent or approval and
involvement of these communities, and that mutually agreed terms have been
established.” She also supported disclosure requirements in intellectual
property legislation.


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Elizabeth Rajasingh
Perls Research and Policy Fellow, Knowledge Ecology International
1621 Connecticut Ave. NW, Suite 500
Washington, DC 20009
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