A/HRC/26/19
towards a new intellectual property regime that was in conformity with human rights norms
and standards.
30.
Mr. Abbott expressed the view that it was self-evident that governments were under
an international human rights legal obligation to make use of intellectual property
flexibilities in appropriate circumstances. The source of that obligation might be found in a
number of human rights, and more than one such right might apply in a given situation. A
generalized norm relating to the obligation to use intellectual property flexibilities might be
that there was an obligation to prevent the exercise of an intellectual property-based
exclusive right to control a technology or an expression when there was a substantial risk to
human life or health, and such risk was not adequately addressed by existing governmental
resources. The obligation could also extend to situations where exclusive control of the
technology or the expression was substantially impairing human development, including
educational development, and the holder of the right had not offered or provided a
satisfactory solution. In relation to patents, for instance, a broad range of intellectual
property flexibilities was available, including discretion in the framing of the criteria for
patenting, the option for parallel importation, limited exceptions to patent rights and
compulsory licensing and government use. The Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) left substantial room for government discretion.
However, such discretion was not unlimited, even though the boundaries were often
unclear.
31.
Many interventions focused on the use of TRIPS flexibilities, with one participant
noting that, in recent years, the debate had centred on the interests of powerful States as
opposed to those of less powerful States, the latter being more constrained in their ability to
resort to compulsory licensing in appropriate circumstances. Several participants were of
the view that the international patent system was fundamentally flawed as it promoted the
financial interests of the powerful at the expense of the poor. They asserted that that
positioning of trade and commercial interests above human rights and the public welfare
should be revisited. One participant posed the question whether, by focusing on TRIPS
flexibilities, rather than the underlying conflict between the intellectual property system and
human rights norms, a concession was being made to the intellectual property regime by
default. Another participant submitted that failing to consistently frame arguments for the
revision of the intellectual property regime in human rights terms was possibly hindering
efforts to bring human rights into the discussion.
32.
Some participants noted that the patent system adversely affected the rights of smallscale farmers to retain and sell seeds, in response to which one participant referred to the
flexibility available within the intellectual property regime which could permit exceptions
to allow seed retention for replanting purposes. A number of other issues were raised during
the discussion, including the extent to which States had positive obligations to protect
access to scientific progress, the efficacy of using the patent system as the primary means
of technology transfer, the extent to which publicly funded research could and should be
privatized, and ownership of publicly funded inventions.
F.
Access to information, technology and knowledge
33.
Iryna Kuchma (Electronic Information for Libraries), Roger Pfister (Swiss Academy
of Sciences/International Council for Science Committee on Freedom and Responsibility in
the Conduct of Science) and Hans Morten Haugen (Diakonhjemmet University College)
made presentations. The panel was moderated by Christian Courtis.
34.
Ms. Kuchma emphasized that access to information and knowledge was crucial to
the realization of “the right to science” and that open access repositories facilitated
technology-enabled networking and collaboration, which offered fresh avenues for
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