A seminar on the right to enjoy the benefits of scientific progress and its applications was heldat the United Nations last week with panellists exploring the intersection between intellectual property and human rights in the context of public health, agriculture, and the role of flexibilities to achieve balance between private and public interests.

The 3-4 October seminar brought together a series of panellists, in particular Farida Shaheed, United Nations special rapporteur in the field of cultural rights, who presented a report on the right to enjoy the benefits of scientific progress and its applications at the 20th session of the UN Human Rights Council in May 2012.

The results of the seminar might be the subject of a general discussion and a possible general comment, according to the host, the Office of the High Commissioner for Human Rights (OHCHR) secretariat.

Marco Aleman, deputy director of the Patent Law Division at the World Intellectual Property Organization (WIPO), and former head of the Colombian industrial property office, said patent systems in different jurisdictions are implementing multilateral instruments considering different elements that are essential to the patent systems. They aim to ensure that specific goals are fulfilled. One of those goals is that the technology involved in the protection be diffused and available.

There are, moreover, specific and objective requirements for patentability, he said. 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 or she is the author, described in General Comment N°17 to paragraph 15(c) of the International Covenant on Economic, Social and Cultural Rights is a fundamental right. But the states have to decide what will be the shape of the system that will provide this right, he said.

All patent laws worldwide include a stringent requirement for disclosing the invention in “great levels of detail,” he said. If that level of details is not enough to allow a third party to produce the same outcome with the information contained in the patent document, the patent could be invalidated, he said.

“We know that the way this is enforced changes from one jurisdiction to another,” he said. In some jurisdictions, the patent offices are well-equipped to force the applicant to disclose, in some others the lack of expertise will allow the patent applications to continue although the disclosure requirement is not met, he said. However, all patent laws include a publication of either the patent applications or of the granted patents, and in a large number of countries this takes place 18 months after the filing, he said.

The patent system also includes a research exception, he said, and during the 20 years of protection the invention can be consulted, analysed and tested by any person interested by how the technology works.

After the protection period, the invention falls into the public domain, he said. A number of patent applications fail due to a variety of reasons, he said, but those failed applications, after publication, also go into the public domain, he said.

Since 1883, some 147 million patent applications have been filed worldwide, he said. Only about eight million of them are either in the pipeline of prosecution or have been granted, which means about 95 percent of those applications filed since 1883 are in the public domain, he said. One could argue that those active patents hold the newest and most needed technologies, he admitted, but previous technologies may hold solutions for many of the problems met by different member states.

Defending Government Use of Flexibilities for Human Rights

Prof. Fred Abbott of Florida State University law school said there is a “strong effort underway to push public health regulation out of the WHO [World Health Organization] and venues such as the UN human rights bodies and into WTO [World Trade Organization] and other trade-related forums, such as the bilateral and plurilateral regional trade negotiations.”

“The groups promoting human rights and the groups promoting the protection of public health and other public values must be prepared to defend their policy space, and reject the idea that the WTO or other trade agreements or institutions have jurisdiction or priority over the UN human rights regime, the WHO and related rules,” he said.

On whether states may be under obligation to adopt and use IP flexibilities to realise human rights, he said: “It is self-evident that governments are under an international human rights legal obligation to make use of IP flexibilities in appropriate circumstances.”

This obligation is grounded in a number of human rights, and sometimes several can be applicable in a given situation, such as the right to life and the right to benefit from scientific advancement.

However, he said, the issue of whether it is “necessary or appropriate to further elaborate circumstances under which the international human rights obligations arise,” and how they should be used in a practical way, might require more deliberation and development.

“Human rights,” Abbott said, “are protective of the individual person. IP rights have a component of individual entitlement … but are primarily an instrument of industrial policy. The vast majority of IP in commercial use is owned by large industrial corporations (and today large digital enterprises) using that IP instrument to generate wealth.”

“If international human rights in favour of sharing the benefits of science and technology are going to be successfully used to push governments to promote and protect the interests of individuals, it is probably necessary to provide additional specificity to the norms or, to put it another way, to circumscribe the degree of flexibility governments have to implement those rights,” he said. “Successfully invoking rights as against the government requires that the government not be given an open-ended interpretative space.”

While the main focus of IP flexibilities has been public health in recent years, IP covers a variety of human activity, such as agriculture, education, energy generation, communication and traditional knowledge, Abbott said, adding that, “The balance or context under which there are international human rights obligations to exercise IP flexibilities must be assessed in all of these subject matter areas.”

IP flexibilities can be used by countries to frame the criterion of patentability, he said, and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “is drafted at a moderate degree of specificity, leaving substantial room for national government discretion,” Abbott concluded. “However, such discretion is not unbounded, even if the boundaries are often blurry.”

Abbott’s remarks are available here [pdf].

Right to Technical and Scientific Progress Applied to Right to Food

Hans Morten Haugen, associate professor at Diakonhjemmet University, Norway, said states parties to the International Covenant on Economic, Social and Cultural Rights, in Article 11.2 recognise the fundamental right of everyone to be free from hunger. They should therefore improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge.

The seminar, he said, should have been held in 1983, not 2013, as the 1980s were at the height of nuclear threat, at least in Europe, and human rights and science discussions were formed in that context. That “shaped discussions for at least a decade,” he said.

It was also a period when “states slowly but quite consistently abdicated from undertaking public research programmes,” he said. That trend proved crucial in the developing of agricultural capacities in the United States and in the European Union, for example, “leaving the arena for the private actors and incentivizing them” by granting patents on biotechnology, he said.

Studies have shown that development in agriculture and growth in agriculture are at least twice, sometimes three times, as effective in reducing poverty than growth in any other sectors, he said, and growth in agriculture benefits the poorest segments of society the most.

A number of UN instruments and resolutions also support the view that methods of production should be improved and technical and scientific knowledge should be fully used in agriculture, he said. An example is resolution A/RES/66/195 adopted by the UN General Assembly in December 2011 on agricultural technology for development. In particular, paragraph 7 calls for including smallholder farmers, especially women, in taking decisions about “making appropriate sustainable agricultural technologies and practices available and affordable to them.”

Farmers’ Rights Seen as Key

Farmers’ rights in that context are very important, Haugen said. First recognised by the UN Food and Agriculture Organization in 1989, they were later also recognised by the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (Article 9).

He gave the example of India’s Protection of Plant Variety and Farmers Rights Act [pdf] from 2001, which he said, “complies with TRIPS but most likely not with UPOV [the International Union for the Protection of New Varieties of Plants],” in particular Articles 39-46 on farmers’ rights.

Article 39.2 of India’s Act stipulates “Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers of any organization of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organization of farmers, as the case may be, the expected performance under given conditions, and if such propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organization of farmers, as the case may be, may claim compensation…” he said.

The same article says, “a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act.” This has been a request from farmers’ group worldwide. India is not a member of UPOV.

Haugen cited what he describes as “an affordable and technically available technology” to fight the striga seed, a plant desease affecting maize. Planting desmodium plants near maize plants effectively kills the striga seed, he said, and this was a “crucial” technology for farmers in striga-ridden regions, that could be easily distributed.

Participation Necessary To Benefit From Science

Jessica Wyndham, associate director of the Scientific Responsibility, Human Rights and Law Program at the American Association for the Advancement of Science (AAAS), said that through its Science and Human Rights Coalition, a network of scientific and engineering membership organisations, AAAS set up 16 focus groups with 145 participants to explore scientists’ perspectives on the meaning of the right to science.

Scientists and health professionals were asked to identify three benefits of their discipline to society. The most cited benefits were: health; advancing knowledge; ecological environmental; and education and training.

For the benefits of scientific progress to be realised, she said, participation is necessary and can take various forms, such as participation in political processes, decision-making, and engaging in science as a researcher or as a research subject. She noted a gender inequality in research, with only about 27 percent of researchers being women possibly due to poverty, negative stereotypes, education orientation, and disabilities.