'There Is No Human Right To Patent Protection' — UN Special Rapporteur
from the fighting-talk dept
Back in March, Tim Cushing wrote about a rather remarkable report from the UN Special Rapporteur in the field of cultural rights, Farida Shaheed, in which she warned that copyright might run counter to human rights. As if that weren’t enough, Shaheed is back with another bold attack, this time on patents. As the summary to her report puts it:
There is no human right to patent protection. The right to protection of moral and material interests cannot be used to defend patent laws that inadequately respect the right to participate in cultural life, to enjoy the benefits of scientific progress and its applications, to scientific freedoms and the right to food and health and the rights of indigenous peoples and local communities.
Patents, when properly structured, may expand the options and well-being of all people by making new possibilities available. Yet, they also give patent-holders the power to deny access to others, thereby limiting or denying the public?s right of participation to science and culture. The human rights perspective demands that patents do not extend so far as to interfere with individuals’ dignity and well-being. Where patent rights and human rights are in conflict, human rights must prevail.
The report touches on many issues previously discussed here on Techdirt. For example, how pharmaceutical patents limit access to medicines by those unable to afford the high prices monopolies allow — a particularly hot topic in the light of TPP’s rules on data exclusivity for biologics. The impact of patents on seed independence is considered, and there is a warning about corporate sovereignty chapters in trade agreements, and the chilling effects they can have on the regulatory function of states and their ability to legislate in the public interest — for example, with patent laws. Shaheed concludes by noting:
Patents are one policy tool among many for encouraging innovation and technological research and development. More caution is required in assessing their positive versus negative effects depending on the context and the technologies at stake.
She then goes on to suggest a number of broad ways in which the current approaches can be improved. First, through “ensuring transparency and public participation in law-making.” Concretely, that means:
International intellectual property instruments, including trade agreements, should be negotiated in a transparent way, permitting public engagement and commentary.
National patent laws and policies should be adopted and reviewed in forums that promote broad engagement, with input from innovators and the public at large.
Companies benefitting from patents 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.
She calls for patent laws, policies and practices to be compatible with human rights, and subject to formal human rights assessments. She emphasizes the importance of exclusions, exceptions and flexibilities in patent laws, and cautions against obliging nations to “support, adopt or accept” patent rules that go beyond the basic requirements of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Shaheed wants governments to adopt policies that foster the right to science and culture, rather than pushing longer and broader patent laws that risk closing off both. Finally, she calls for measures to take account of the special needs of indigenous peoples and local communities — an area that is becoming an increasing contentious one as those groups start to assert their rights against corporations that often use patents to appropriate traditional knowledge, sometimes even excluding the very people they have learned it from.
Although most of the issues and solutions raised by Shaheed will be familiar to Techdirt readers, the report is a good summary of them, and usefully places them in an over-arching human rights framework. Above all, Shaheed’s work here on patents, and earlier UN report on copyrights, are important as a clear sign of how the conventional maximalist wisdom that the more intellectual monopolies we have, the better, is now being challenged ever-more widely and powerfully.