A/HRC/26/19
address barriers to claiming rights more broadly and that, while there was certainly a moral
imperative, access to the benefits of scientific progress was also a legal right.
E.
Right to enjoy the benefits of scientific progress and intellectual
property rights: conflict or complementarity?
27.
Presentations were made by Marco Aleman (WIPO), Mpazi Sinjela (University of
Lusaka) and Frederick Abbott (Florida State University College of Law). The panel was
moderated by Christian Courtis (OHCHR).
28.
Mr. Aleman gave a detailed overview of the patent system, explaining that, as there
were stringent criteria for the granting of patents, only exceptional inventions qualified.
Article 15 of the International Covenant on Economic, Social and Cultural Rights
guaranteed both the right of everyone to enjoy the benefits of scientific progress and the
right of persons to benefit from the protection of the moral and material interests resulting
from any scientific, literary, or artistic production of which they were the author. He noted
the potential tension in the applicability of those provisions and referred to general
comment No. 17 of the Committee on Economic, Social and Cultural Rights, which urged
State parties to ensure that their laws and systems for the protection of creators’ rights did
not impede their ability to comply with core human rights obligations.7 He indicated that it
was the responsibility of States to develop intellectual property systems that balanced the
rights of inventors with the rights of potential beneficiaries of new technologies, and that
the Berne and Paris conventions8 adopted by WIPO member States allowed significant
latitude to States to implement their multilateral commitments. Mr. Aleman stated that
flexibilities built into the patent system were an option that States could invoke to balance
their obligations to protect intellectual property and human rights. Flexibilities within the
multilateral treaties on intellectual property granted States the policy space to implement
their multilateral commitments in the way that best responded to their domestic needs.
29.
In his presentation, Mr. Sinjela stated that, since intellectual property rights were
private rights, they should be granted in balance with the broader interests of society. Since
human rights law recognized both private property rights (including intellectual property
rights) and the right to enjoy the benefits of scientific progress, the challenge was to
balance the interests of inventors with those of society. He noted that, although the
Committee on Economic, Social and Cultural Rights was of the view that a balance that
upheld both rights was possible, the tension between them was real. That tension was
apparent in areas such as access to medicines, access to books and other educational
materials and plant patents where, for instance, copyright law might conflict with the right
to education and patent law with the rights to food and health. The protection of traditional
knowledge and folklore in intellectual property systems was another area of tension.
Typically, such knowledge had been treated as public knowledge and, therefore, not
included in the patent system. Mr. Sinjela proposed that that knowledge could be
recognized as the contribution of developing countries in agreeing terms for more
favourable and cost-effective access to life-saving drugs. He underscored the need for a
more thorough-going discussion of those issues at the level of the United Nations, taking
into account the views of civil society and other stakeholders, in order to build consensus
7
8
Committee on Economic, Social and Cultural Rights, general comment No. 17 (2005) on 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, para. 35.
Berne Convention for the Protection of Literary and Artistic Works, 1886 and Paris Convention for
the Protection of Industrial Property, 1883.
9
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