'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.

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Comments on “'There Is No Human Right To Patent Protection' — UN Special Rapporteur”

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Anonymous Coward says:

Doesn't say do away with entirely! The 2nd para quoted pretty concisely re-states my position that prior levels are about right for practical compromise.

Of course, copyright minimalists will take this as advocating ZERO, when actually it’s hedged with other considerations that I agree are more important. This person and me are THE MODERATES, see?

So don’t go running wild, pirates. Doesn’t affirm what you wish. In no case could a moderate position include the outright taking of the whole work-products, especially not for corporations like Megaupload to “monetize”.

Besides that, the US Constitution — by which I mean the practical common law humanism it outlines, not the corporatized neo-feudalistic horror of present actualities — is still the superior law.

Anonymous Coward says:

I would draw similar conclusions, but I get very frustrated when people start inventing “rights” left and right thereby diluting the importance of actual rights. I’m all for freedoms, liberties, privilege and general human values. That’s not the same thing as rights, and that’s a critical distinction. Violating a privilege is generally bad but may be justifiable, violating a right is absolutely (not relativistically) immoral unless doing so prevents an even greater evil. And thus there can be no proactive rights – failing to do something can never violate a right.

“right to participate in cultural life”

If there were such a thing it would be awkward and specific, not germane to the topic.

“to enjoy the benefits of scientific progress and its applications”

There is absolutely no such thing. If I make scientific progress and decide not to share it with people living in Madagascar I’ve not intrinsically and unequivocally acted immorally.

“to scientific freedoms”

Please clarify. We do not have a general right to experimentation.

OldMugwump (profile) says:

Re: We do not have a general right to experimentation.

I don’t want to go too deep down the philosophical rathole, but in my view people have the right to do anything that does not infringe on the equal rights of others, or pose unreasonable risk of doing so.

There may be experiments that by their nature will infringe on the rights of others, or pose risk of doing so – if I want to “experiment” with nuclear weapons in my backyard, I think it’s fair to say my neighbors’ rights may be infringed.

But in general if we believe that people should be free, then they have the right to anything, including any and all experiments.

Provided those actions don’t infringe, or pose a reasonable risk of infringing, the equal rights of others.

(Yes, I’m well aware there are many who do not think people should be free.)

cpt kangarooski says:

Re: Re:

Well, well, well, it looks like Humpty Dumpty is back.

You are using the word ‘right’ in an extremely formal (and frankly, dubious) way that is completely out of line with the ordinary meaning of the word, yet you then seek to have your cake and eat it too by insisting upon the great value that most people give the ordinary form of rights being given to your much more narrower conception of rights. It’s rather pathetic.

Yes, people have a right to participate in cultural life, they have a right to enjoy the benefits of scientific progress and its applications, and yes, they have a right to scientific freedoms. You’re hung up on the fool idea that you cannot possibly have a right without someone else having a duty, and vice versa, but you’re wrong. You can ask anyone, in fact. Ask them whether, when they wake up in the morning, do they have a right to, oh, let’s say to be happy that it’s a brand new day to do things and enjoy themselves as best they can. Everyone will agree that they do. Even though no one else has a duty to help bring that about, which means that you will say that they do not have such a right.

Ordinarily, someone who was so mentally deficient that they could not see any meaning for a right outside of Hohfeld, would just be sad. But context is usually important, and it is important here. Around these parts there is often talk of how there is a natural human right to free speech, and how copyright, not being found in nature, and being in opposition to the exercise of the right of free speech (as it is a form of censorship), and not being obligatory by any government to grant, is a privilege to which many conditions might be attached without being cause for complaint, as the ever-present alternative is no copyright at all. And there is a similar discussion with regard to patents.

Copyright maximalists sometimes try to derail such arguments by claiming that copyright is a right, and free speech and the public domain are privileges. And while Hohfeld’s work on rights et al is where that terminology is drawn from, it’s arbitrary and as already pointed out, well at odds with the common thinking about what are and are not rights, even in most legal writing.

As a result: to try to use Hohfeldian terminology while still trying to enjoy the benefits of people’s positive feelings about things called rights is to troll, nothing more and nothing less.

But, just in case you really do want to had an honest talk about copyrights or patents from a Hohfeldian perspective, I feel that it is incumbent on you to modify the terminology a bit just so that there can be no possibility of trying to use these words in a cold, technical, and unusual way but having people misunderstand them according to the warm, fuzzy, usual concepts associated with those words. So instead of saying Right, Duty, Privilege, No-Right, Power, Liability, Immunity, and Disability, try saying Alfa, Bravo, Charlie, Delta, Echo, Foxtrot, Golf, and Hotel. That way you don’t get to use words loaded with other relevant meanings as a crutch for your argument. If you really have a point, it’ll come through without your needing a handicap.

But have that discussion with someone else because you’ve already convinced me that youre intellectually dishonest in such matters.

Andrew D. Todd (user link) says:

Re: Re: Re: We do not have a general right to experimentation.

The United Nations is a democracy of sorts, operating on a modified one-country-one-vote basis. The vast majority of the UN’s members are third-world countries, and their cumulative population is the vast majority of the earth’s population. UN Special Rapporteur Farida Shaheed is simply speaking for her constituents, whose servant she is. She is simply summing up their views. What it comes down to is that the six billion or so people in the poor countries have no intention of paying substantial royalties to the wealthy countries, such as the United States. Furthermore, they have no intention of depriving themselves of things which can be obtained by mere copying. They are as intransigent about the matter as the American Colonists were about King George’s tea.

You offer them nothing except continued poverty, and why does it surprise you that they are not interested in your proposals?

If the poor countries cannot achieve an arrangement by treaty with the wealthy countries, they will simply denounce patents and copyrights, and set up suitable exchange arrangements. For example, drugs made in India will be flown directly to South Africa, and from there to Brazil, and so to various countries in Africa and South America, staying strictly out of the reach of American or European customs officials.Undersea cables will be laid on the same principle, to avoid American censorship. Information will be made available to anyone in the poor countries, including visiting Americans, either physically visiting or tele-visiting. The poor countries cannot be expected to adopt an expensive system of policing their own people, similar to military classification, to prevent the back-flow of information, Say it with me: “When, In the Course of Human Events…”

The only way the wealthy countries can stop this is to physically invade and occupy the poor countries. It would be like the Vietnam War and the Afghan War and the Iraq War, only a hundred times more difficult. I used to be a military historian, and, in that connection, have known a number of soldiers. I have to tell you that my military friends are not interested in fighting and dying for the profits of Hollywood moguls or stock-market speculators. The are not going to march to Lexington and Concord, wearing bright red coats, and being shot at by Minutemen from behind stone walls…

Here is a curious story, from Henry Petroski’s Pencil. Up until 1947, the art of making pencils was a trade secret. As each new entrant to the market taught itself how to make pencils, it kept its own secrets, and joined the “ring.” However, newly independent India did not see it that way. It conducted a program of experimentation to discover how to make pencils, and published its findings in a series of government reports. When countries like China were ready to make their own pencils, all they had to do was to read the Government of India reports.

Anonymous Coward says:

Re: Re: Re:2 We do not have a general right to experimentation.

“The only way the wealthy countries can stop this is to physically invade and occupy the poor countries. It would be like the Vietnam War and the Afghan War and the Iraq War, only a hundred times more difficult. I used to be a military historian, and, in that connection, have known a number of soldiers. I have to tell you that my military friends are not interested in fighting and dying for the profits of Hollywood moguls or stock-market speculators. The are not going to march to Lexington and Concord, wearing bright red coats, and being shot at by Minutemen from behind stone walls…”

Don’t worry, it’s not like our dear leaders are loathe to make up or blow some issue out of proportion, gaining the people’s support to send troops abroad.
There’s plenty to choose from: WMD, nuclear program, satellite program, terrorist cells…
That’s what the soldiers will be told they’re fighting against.
After all even an unstable, warring region is OK as it bears little threat to western copyright. And if they’re lucky eventual trade agreements will only serve to cement western copyright.

Binko Barnes (profile) says:

Copyright was a good idea when it lasted 14 years, had to be registered and could be renewed for one additional 14 year term. You could make the case that it actually encouraged creators to create rather than just milk one success forever. And it kept the common cultural pool rich and vibrant.

But copyright stopped serving the public interest when it morphed into a tool for maximizing corporate control and profit. Sadly I can’t see it ever getting rolled back. The power of corporate money over the political process is just too absolute.

Éibhear (profile) says:

EU Charter of Fundamental Rights, Article 17.2

Article 17 of the EU Charter of Fundamental Rights covers a right to property, with paragraph 2 saying:

“Intellectual property shall be protected.”

On both occasions Ireland had to vote on the matter with the Lisbon Treaty, I urged people to vote for it primarily because of the Charter. However, Article 17.2 has always felt wrong.

It’s bullshit.

And Ms. Shaheed’s report shows how that is the case.

I wonder when the CJEU will be presented with a case that conflicts article 17.2 with some other right in the charter; it would be interesting to see how the conflict is resolved. Probably won’t be pretty.

Anonymous Coward says:

Re: Of course not

“and the right to food and health”
Unfortunately, food and health are not rights.

Sure, as a society we should realize that having a safety net is much better than not having one but it’s a privilege and not a right.

In fact, I’d argue that there are no rights other than those we carve out for ourselves as individuals and as a species.

For example a man with a gun can always end someone else’s right to life.

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