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nettime's_special_rapporteur on Sat, 17 Oct 2015 19:20:45 +0200 (CEST)

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<nettime> Techdirt > Glyn Moody > UN Special Rapporteur: No Human Right to Patent Protection


'There Is No Human Right to Patent Protection' -- UN Special Rapporteur

by Glyn Moody
Wed, Oct 14th 2015 9:32am
from the fighting-talk dept

Back in March, Tim Cushing wrote about a rather remarkable report from
the UN Special Rapporteur in the field of cultural rights, Farida
Shaheed, in which she warned that copyright might run counter to human
rights. As if that weren't enough, Shaheed is back with another bold
attack, this time on patents. As the summary to her report puts it:

	There is no human right to patent protection. The right to protection of
	moral and material interests cannot be used to defend patent laws that
	inadequately respect the right to participate in cultural life, to enjoy
	the benefits of scientific progress and its applications, to scientific
	freedoms and the right to food and health and the rights of indigenous
	peoples and local communities. 

	Patents, when properly structured, may expand the options and well-being
	of all people by making new possibilities available. Yet, they also give
	patent-holders the power to deny access to others, thereby limiting or
	denying the public's right of participation to science and culture. The
	human rights perspective demands that patents do not extend so far as to
	interfere with individuals' dignity and well-being. Where patent rights
	and human rights are in conflict, human rights must prevail.

The report touches on many issues previously discussed here on Techdirt.
For example, how pharmaceutical patents limit access to medicines by
those unable to afford the high prices monopolies allow -- a
particularly hot topic in the light of TPP's rules on data exclusivity
for biologics. The impact of patents on seed independence is considered,
and there is a warning about corporate sovereignty chapters in trade
agreements, and the chilling effects they can have on the regulatory
function of states and their ability to legislate in the public interest
-- for example, with patent laws. Shaheed concludes by noting:

	Patents are one policy tool among many for encouraging innovation and
	technological research and development. More caution is required in
	assessing their positive versus negative effects depending on the
	context and the technologies at stake.

She then goes on to suggest a number of broad ways in which the current
approaches can be improved. First, through "ensuring transparency and
public participation in law-making." Concretely, that means:

	International intellectual property instruments, including trade
	agreements, should be negotiated in a transparent way, permitting public
	engagement and commentary.

	National patent laws and policies should be adopted and reviewed in
	forums that promote broad engagement, with input from innovators and the
	public at large. 

	Companies benefitting from patents 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

She calls for patent laws, policies and practices to be compatible with
human rights, and subject to formal human rights assessments. She
emphasizes the importance of exclusions, exceptions and flexibilities in
patent laws, and cautions against obliging nations to "support, adopt or
accept" patent rules that go beyond the basic requirements of the World
Trade Organization Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS). Shaheed wants governments to adopt policies
that foster the right to science and culture, rather than pushing longer
and broader patent laws that risk closing off both. Finally, she calls
for measures to take account of the special needs of indigenous peoples
and local communities -- an area that is becoming an increasing
contentious one as those groups start to assert their rights against
corporations that often use patents to appropriate traditional
knowledge, sometimes even excluding the very people they have learned it

Although most of the issues and solutions raised by Shaheed will be
familiar to Techdirt readers, the report is a good summary of them, and
usefully places them in an over-arching human rights framework. Above
all, Shaheed's work here on patents, and earlier UN report on
copyrights, are important as a clear sign of how the conventional
maximalist wisdom that the more intellectual monopolies we have, the
better, is now being challenged ever-more widely and powerfully.

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