Intellectual Property and the Right to Science and Culture: the Reports of the Special Rapporteur in the Field of Cultural Rights

Abstract

In recent years, the right to science and culture has emerged as a leading conceptual framework for reconciling intellectual property law with human rights. The textual foundation of the right to science and culture dates back to the 1948 Universal Declaration of Human Rights. Article 27 of the UDHR states: “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Despite clear grounding in the international human rights documents, this particular provision has long suffered from obscurity and confusion about its meaning. Fortunately, a new wave of scholarship provides a more solid conceptual foundation for the right to science and culture. This new literature understands the right to science and culture as having two complementary aspects. The “protection” aspect of the right calls for attention to the moral and material interests of authors and scientists. The “participation” aspect emphasises inclusion in the processes of creative expression and scientific discovery, as well as access to the fruits of cultural and technological creativity. This dual nature allows the right to science and culture to play a unique role in intellectual property debates. The encounter between the international human rights and IP regimes had previously been framed strongly in terms of conflict between IP protection and human rights demands. In contrast, the right to science and culture frames both protection and access in human rights terms. It thus points towards solutions in the nature of integrating and reconciling intellectual property and human rights principles, rather than asserting the primacy of one set of interests over the other. These ideas have now found acceptance within the United Nations system. The UN Special Rapporteur in the field of cultural rights, Farida Shaheed, first offered a detailed and authoritative interpretation of the right to science in a May 2012 report adopted by the UN Human Rights Council (A/HRC/20/26). Among many themes, this report considered the role of intellectual property in shaping enjoyment of the right to science. Between 2013 and 2015, the Special Rapporteur decided to focus even further on understanding and explaining the relationship between intellectual property and the right to science and culture. This subsequent work ultimately resulted in two major reports by the Special Rapporteur, one focused on copyright (A/HRC/28/57) and the other on patents (A/70/279). This short article examines the origins, development, and conclusions of these two reports. I had the privilege to serve as a consultant to the Special Rapporteur in this process, producing drafts, participating in all meetings organised to solicit expert feedback on the drafts, and collaborating on their finalisation. My aim here is to provide an accessible overview of the substance of these reports, as well as to take the reader “behind the scenes” to appreciate some of the challenges and difficulties encountered during the process to provide insight on the choices ultimately made.