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

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 development.

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 from.

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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Filed Under: farida shaheed, human rights, patents, un

UN Cultural Rights Rapporteur Delivers Report Condemning Prevailing Copyright Laws

from the in-service-to-industries-and-nations,-rather-than-creators dept

The UN Special Rapporteur in the field of cultural rights, Farida Shaheed, has just delivered a less-than-complimentary report on copyright to the UN's Human Rights Council. Shaheed's report actually examines where copyright meshes with arts and science -- the two areas it's supposed to support -- and finds it runs contrary to the rosy image of incentivized creation perpetuated by the MPAAs and RIAAs of the world.

Shaheed said a “widely shared concern stems from the tendency for copyright protection to be strengthened with little consideration to human rights issues.” This is illustrated by trade negotiations conducted in secrecy, and with the participation of corporate entities, she said.

She stressed the fact that one of the key points of her report is that intellectual property rights are not human rights. “This equation is false and misleading,” she said.

The last statement fires shots over the bows of "moral rights" purveyors, as well as those who view infringement as a moral issue, rather than just a legal one.

Shaheed also points out that the protections being installed around the world at the behest of incumbent industries are not necessarily reflective of creators' desires.

The right to protection of authorship remains with the human author(s) whose creative vision gave expression to the work, even when the copyright interest has been sold to a corporate publisher or distributor. We should always keep in mind that copyright regimes may under-protect authors because producers/publishers/distributors and other “subsequent right-holders” typically exercise more influence over law-making than individual creators, and may have divergent and possibly opposing interests to those of the creators.

In addition, the intellectual property standards pushed by the United States and others treat fair use, personal use copying, educational use and other similar aspects as exceptions rather than something inherent to the permissions granted to rights holders by these laws -- a balancing factor between the copyright holders' and the publics' interests.

The main challenge, I believe, is that international copyright treaties generally treat copyright protections as mandatory, while largely treating exceptions and limitations as optional. The standard for judging whether a particular exception or limitation is permissible under international copyright law is not articulated with precision. This is why one of my recommendations is to explore the possibility of establishing a core list of minimum required exceptions and limitations incorporating those currently recognized by most States, and/or an international fair use provision.

Not that any established industry reliant on these expansive protections would ever agree to such a thing. It took a whole lot of public shaming before industry heads agreed to copyright exceptions for the blind. Anything above this level of begrudging "charity" has been forced down the throats of these industries by various governments.

Shaheed suggests one solution to the imbalance of power in the copyright system: a division of rights between creators and their "representative" rights holders.

Creators often need corporate rights holders: to develop innovative ways of delivering cultural works to the public, provide capital to finance high-budget cultural productions, and free artists from many of the burdens of commercializing their work. The human right to protection of authorship requires that copyright policies be carefully designed to ensure that authors (and not only copyright holders) benefit materially. An appropriate balance is crucial, recognizing that creators are both supported and constrained by copyright rules.

She also points out that it's not only incumbent industries standing in the way of better international copyright laws, but also "incumbent" countries.

Several countries, such as Indonesia and Brazil, commented on the issue of the protection of local and indigenous communities, which is mentioned in the report, for which they said “intellectual property historically failed” to take into account the issues of indigenous peoples.

Some developing countries said the current copyright system hinders the right to development by a violation of the right to education, health and progress and many other rights related to affording a basic decent life to millions in developing countries, according to UN sources.

The reaction of the incumbents?

The US said it disagrees with the report, in particular the recommendation related to copyright norm-setting activities at experts’ discussion in other international fora. They also disagreed on the suggestion that individual creators and corporations or businesses should merit different protections.

Portugal said the current copyright framework constitutes an important tool for human development, especially for cultural and scientific advancement.

France wondered why more established countries weren't considered in the report, arguing that cutting out the major players who wield an inordinate amount of power somehow resulted in an "unbalanced outcome."

The UN will take this report under consideration, along with a second report due later this year from Shaheed dealing with the patent system. Unfortunately, this somewhat scathing look at the present copyright system will do little to derail secretive international trade agreements that foist intellectual property "protections" foisted on smaller, less powerful countries.

Filed Under: copyright, culture, farida shaheed, human rights, un