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Special Rapporteur in the field of cultural rights
Intellectual property regimes represent an important field of international law. However, not much work has been done to examine the impact of these regimes on human rights, or to adopt a human rights perspective to their application.
In 2014, the Special Rapporteur decided to engage in a thematic study on the issue of the impact of intellectual property regimes on the enjoyment of right to science and culture, as enshrined in particular in article 15 of the International Covenant on Economic, Social and Cultural Rights. Her findings provided material to present two consecutive reports, one to the Human Rights Council (March 2015) and one to the United Nations General Assembly (October 2015).
Intellectual property regimes can have an impact on a number of rights, in particular on:
In her 2015 report to the Human Rights Council, the Special Rapporteur examined more closely copyright law and policy from the perspective of the right to science and culture (A/HRC/28/57). She emphasized both the need for protection of authorship and increased opportunities for participation in cultural life.
The report recalls that "intellectual property" is an umbrella term encompassing a number of distinct legal regimes that create private property rights related to intangible assets. As protection of authorship differs from copyright protection, the Special Rapporteur proposed several tools to advance the human rights interests of authors, as well as ways to expand copyright exceptions and limitations to empower new creativity, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works. She also recommended to promote cultural and scientific participation by encouraging the use of open licenses, such as those offered by Creative Commons.
More information available on the copyright policy report page
The 2015 report to the General Assembly continued the work on intellectual property addressing the implications of patent policy for the human right to science and culture (A/70/279). The Special Rapporteur reaffirmed the distinction to be made between intellectual property rights and human rights, emphasizing that the right to the protection of the moral and material interests of authors does not necessarily coincide with the prevailing approach to intellectual property law. 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 impact the right to participate in cultural life, to enjoy the benefits of scientific progress and its applications, to scientific freedoms, as well as the rights to food and health and the rights of indigenous peoples and local communities.
The Special Rapporteur recalls that, when properly structured, patents 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.
Whereas from the perspective of trade law, exclusions, exceptions and flexibilities under international intellectual property law, such as the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, remain optional, from the perspective of human rights, they are often to be considered as obligations.
Read more information on patent policy and the right to science and culture on the patent policy report page.