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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