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.
Image Credits: ohchr
If this is applied, the world will change into what it is expected to be. Hopefully it is not too late yet.
Human Rights Act versus Sherman Act: The loophole or the back door?
We note that the UK Govt attempted to abolish the 1988 Human Rights Act prior to conclusion of the Transatlantic Trade Agreement which constitutes a foundation for the strategic “T-treaty trinity”: the Trans-Pacific Partnership (TPP), TiSA, and the Transatlantic Trade and Investment Partnership (TTIP) covering approx 70% of world trade. We also note that the CDC has exercised patent ownership of the Ebola Virus in the Human Body in order to pursue its policy of treatment and vaccination and that preference has been given to UK based GSK in the manufacture of vaccines despite fines totalling USD 3 5 Bn for vaccine related bribery, corruption and criminal falsification of records during the 2 years precedent to the launch the current Ebola vaccine – saviour of the tobacco industry. We note that the UN Ebola Budget was USD 1.5Bn rising to USD 3Bn at the point where: “It’s basically admitting defeat,” said Dr. Peter H. Kilmarx, the leader of the federal Centers for Disease Control and Prevention’s team in Sierra Leone, adding that it was “now national policy that we should take care of these people at home.” We also note that West Africa has proven oil reserves totalling USD 6.6 Trillion and that GSK purchased the vaccine manufacturer 2 years prior to the recent outbreak. We reflect upon the correlation between location and date of Ebola outbreaks and discoveries of oil in Africa since 1975 and we note that Ebola containment measures were understood as early as 1975 by the Kikwit people who observed the Do not Touch Rule and children survived even though their parents were infected whilst living in the same hut – as explained by the US Embassy Sierra Leone whilst people were dying in the streets outside Ebola Treatment Centres 40 years later. Ebola is an ex-USSR Biopreparat Bioweapon currently patented by the CDC and an integral component of the NATO Biodefense Strategy along with other similar viruses.
Abolition of the Human Rights Act undermines the UNESCO Charter on Bioethics. How is it possible to develop legislation which manages these diverse political and financial interests whilst upholding human rights?
The Sherman Act is the basis of modern competition law which in principle also extends to States via the Quick Look Rule.
However the Sherman Act was developed to regulate legal entities such as trusts, corporations and states, not human beings.
Between The Loophole and the Back Door lies in our lack of definition of ourselves as Human Beings not only as consumers but also as Living People whose right to exist takes precedence over the interests of other non-living legal entities. This is the primary distinction. The purpose of non living legal entities is to Serve Humanity.
How do we enshrine this principle in Law?
How does this principle extend to genetic engineering, data protection, robots? How do we protect the interests of Humanity?
In the midst of our complex world we have an inadequate definition of principles and legislation regarding the sanctity and right to self determination of the individual, the couple, the family, society, nations, races and humanity and the consequent roles of that which we invent.
As a result we are ruled by our lowest common denominators as is reflected in the differences in quality and effectiveness between national and international legislation, the reluctance of member states to adopt international resolutions and implement them locally; and we are open to the influences of corruption.
How do we Serve Humanity? How do we define this and through which contexts?
[…] [7] http://www.ip-watch.org/2015/10/08/no-human-right-to-patent-protection-un-rapporteur-on-cultural-rig… […]