The right to science and culture
| Autor | Lea Shaver |
| Cargo | Resident Fellow, Information Society Project, Yale Law School. Associate Professor, Hofstra Law School, U.S.A. |
| Páginas | 45-95 |
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The right to science and culture*
LEA SHAVER
ABSTRACT
The Universal Declaration of Human Rights states: “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.” This Article suggests how this text may offer a philosophi-
cal and legal basis to constrain the further expansion of protectionism in international IP law.
Drawing on accepted methodologies of human rights interpretation and recent research
from legal and economic scholars on the va lue of preserving the knowle dge commons,
the Article offers a theory of “the right to science and culture” as requiring a public goods
approach to knowledge innovation and diffusion. The Article the n translates this public
good theory into concrete guidance for policymakers seeking to implement human rights
obligations, and f or jurists asked to adjudicate right s-based challenges to copyright and
patent laws. In conclusion, this Ar ticle suggests that reviving attention to this long-mar-
ginalized provision o f international public law may provide an important rhetorical and
legal tool with which to open up new possibilities for sensible IP reform.
SUMARIO: Introduclion. I. Article 27 in Hislorical Perspective. A. Expanding Access To Science
and Cullure. B. Prolecling The Inleresls of Aulhors. C. From 1948 lo The Currenl Crossroads. II. A
Theory of The Right lo Science and Cullure. A. Knowledge as a Global Public Good. B. Socioeco-
nomic Rights and Univer sal Access. C. Reconciling Access an d Protection. III. Implications for
lntellectual Properly Law. A. The Legal Stalus of The Right lo Science and Culture. B. lmplications
for Internalional IP Law. Conclusion.
INTRODUCTION
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.
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.
—Article 27, Universal Declaration of Human Rights1.
* Este trabajo fue originalmente p ublicado en Wiscons in Law Review, Nº 1 21 (2010). Se repod uce con
expresa autorización de la autora.
1 Universal Declaration of Human Rights, G.A. Res. 217A, Art. 27, U.N. GAOR, 3d Sess., 1st plen. mtg.,
U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter Universal Declaration].
Anuario Andino de Derechos Intelectuales.
Año VII - N.º 7. Lima, 2011
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURÍDICO GENERAL
To date, the interaction between human rights law and intellectual property law has
been considered in three veins. The first approach asserts that intellectual property rights
are in fact human rights. This approach suggests that there is little or no conflict between
internationally accepted human rights norms and the expansion of IP protections.2 A second
approach focu ses on conflicts between human rights and IP in pa rticular areas, such as
the rights to health, food, and education. This second approach suggests that the current
international IP regi me may be fine as a general matter, but re quires tailoring to protect
competing values in particular areas, such as copyrights in educational materials, and patents
on pharmaceutical products and crop varieties.3 More recently, a third approach is emerging,
2 See, e.g., U.N. Econ. & Soc. Council, Comm. on Econ., Soc. & Cultural Rights, Working Paper: Trade and
Human Rights: What’s at Issue?, Part III.C., U.N. Doc. E/C.12/2001/WP.2 (May 7, 2001) (prepared by Hoe
Lim), available at http://shr.aaas.org/article15/Reference_Materials/E_C.12_2001_WP.2_Eng.pdf (asser-
ting that Article 15(1)(c) of the ICESCR protects “the human right to intellectual property protection”); The
Secretary General, Intellectual Property Rights and Human Rights: Report of the Secretary-General, Part III.
G.1–2, delivered to the Sub-Comm’n on the Promotion & Protection of Human Rights, U.N. Doc. E/CN.4/
Sub.2/2001/12 (June 14, 2001), available at http://d access-dds-ny.un.org/do c/UNDOC/GEN/G01/142/
02/PDF/G01142 02.pdf?OpenElement [hereinafter Report of the Secretary-G eneral] (reporting the In-
ternational Publisher Associa tion’s question co ncerning the exist ence of any confli ct between TRIPS
implementation and the realization of “other human rights”); Id. at Part III.H (reporting the argument of the
Max Planck Institute that the situation of intellectual property and human rights “is one of balance rather
than conflict” since “at least the main types of in tellectual property are human r ights”); E.S. Nwauche,
Human Rights-Relevant C onsiderations in Respect of IP and C ompetition Law, 2 SCRIPT-ED 467, 468
(2005), available at h ttp://www.law.ed.ac.u k/ahrc/script-ed/vol 2-4/utopia.pdf (descr ibing what I term
as “the rig ht to science an d culture” as “th e right to intell ectual property” ). Several schola rs have put
forward more nuanced versions of this argument, arguing that intellectual property protections consist of
both elements required by human rights, as well as some elements not grounded in human rights. Audrey
R. Chapman, Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and its
Applications, 8 J. HUM. RTS. 1, 19–20 (2009) [hereinafter Chapman, Towards an Understanding]; Peter
K. Yu, Ten Common Que stions About Intelle ctual Property and Hu man Rights, 23 GA. ST. U. L. REV.
709, 709–12 (2007); Peter K. Yu, Reconceptualizing Intellect ual Property Interests in a Human Righ ts
Framework, 40 U.C. DAVIS L. REV. 1039 (2007); U.N. Econ. & Soc. Council, Committee on Econ., Soc.
and Cultural Rights, Discussion Paper: Approaching Intellectual Proper ty Rights as a Huma n Right:
Obligations Related to Article 15(1)(c), U.N. Doc. E/ C.12/2000/12 (Oct. 3, 2000) (submitted by Audrey
R. Chapman), available at http://documents-dds-ny.un.org/doc/UNDOC/GEN/G00/447/83/pdf/g0044783.
pdf?OpenElement [hereinaft er Chapman, Intellectual Property as a Hum an Right]. This version of the
argument maintains the pr emise that both patent and copyright pr otection are required by human rights
law, but does not discount the possibility of conflict between particular implementations of IP and human
rights. Other scholars have expressed concern that the subtleties of this argument may be lost on IP deci-
sion-makers. Kal Raustiala suggests,
[T]he risk is that the language and politics of human rights, as it filters into the language and politics of IP
rights, will make it harder for governments to resist the siren songs of those seeking ever more powerful
legal entitlements. It remains to be seen whether the marriage of human rights and IP will make international
IP rights more socially just, or just more powerful.
Kal Raustiala, Commentary: Density an d Conflict in Internati onal Intellectual Prope rty Law, 40 U.C.
DAVIS L. REV. 1021, 1037 (2007).
3 See, e.g., Report of the Secretary-General, supra note 2, at Part I.A. (highlighting Brazil’s comments con-
cerning the “right to health”); Id. at Part I.B.3.b. (highlighting Pakistan’s comments concerning the rights
to health, education and food); Id. at Part I.C . (highlighting the comme nts of the German Commiss ion
of Justice and Peace on the rights to f ood and health); Statement by the Committee on Economic Social
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THE RIGHT TO SCIENCE AND CULTURE
MARCO JURÍDICO GENERAL
asserting that the right to development is threatened by international IP rules that impede
technology transfer and the emergence of younger industries. This approach suggests that
higher protections for IP are appropriate for developed countries such as the United States,
but that limits and exceptions should be permitted for emerging economies.4
This Article propo ses a fourth approach to analyzing t he interaction of intellectual
proper ty protecti ons with hum an rights n orms. In con trast to th e three pre ceding ap-
proaches, I suggest that international IP law is in tension with human rights norms not only
in certain narrow instances, but systematically. To the extent that IP protections transform
creativit y, information, science and techn ology from public goods into priv ate ones, I
argue that they are fundamentally in tension with what I shorthand as “the right to science
and culture.”5 This premise need not motivate the conclusion that IP protections must be
& Cultural Rights to the U.N. Committee on Ec onomic Social and Cultural R ights, Human Rights and
Intellectual Property, U.N. Doc. No. E/C.12/2001/15, ¶ 12, (Nov. 26, 2001), available at http://documents-
dds-ny.un.org/ doc/UNDOC/GEN/G01/46 6/41/pdf/G0146641.pdf ?OpenElement [hereina fter CESCR]
(“The Committee wishes to emphasize tha t any intellectual property regime that makes it more difficul t
for a State party to compl y with its core obligations in relation to health, food, education, especially, or
any other right se t out in the Covenant, is i nconsistent with the legally binding obligations of the State
party.”); Audrey R. Cha pman, The Human Rights Implications of Intellectual Property Protection , 5 J.
INT’L ECON. L. 861 (2002) (highlighting several human rights potentially impacted by IP protection, with
emphasis on the right to health) ; Kevin R. Gray, Ri ght to Food Princip les Vis-à-Vis Rules Governing
International Trade (British Inst. of Int’l & Comparative Law, Dec. 2003 ), available at http://www.cid.
harvard.edu/cidtrade/Papers/gray.pdf (recommending use of TRIPS flexibilities to avoid jeopardizing the
right to food).
4 See , e.g., Kai tlin Mar a & J ames Leo nard , Experts Aim to Balance Intellectu-
al Prop erty Ri ghts an d Hum an Ri ghts , IN TE LL. PR OP . WA TC H, May 15, 2009, http://
ww w. ip -w at ch .o rg/ we bl og /2 00 9/ 05 /1 5/ exp er ts -a im -t o- ba la nc e-i nt el le ct ua l- pr op er
ty-rights-and-human-rights/ (describing the interest of the United Nations Working Group on the Right to
Development in international intellectual property policy and quoting the chair of the group as saying that
the challenge is to balance IP protections usefulness as incentives with the need to protect human rights);
U.N. Human Rights Council, Working Group on the Right to Development, Desk Review of the Intergovern-
mental Working Group on Public Health, Innovation and Intellectual Property from a Right to Development
Perspective, ¶¶ 101, 104, U.N. Doc. A/HRC/12/WG.2/TF/CRP.5 (Mar. 27, 2009) (prepared by Lisa For-
man), available at http://www2.ohchr.org/english/issues/development/right/docs/A-HRC-12-WG2-TF-CR
P5.doc (praising the IGWG process for encouraging developing countries to take full use of TRIPS flex-
ibilities, but criticizing the proces s for failing to emphas ize the importance of s uch countries avoiding
the imposition of TRIPS-plus measures in bilateral trade treaties, from the overall perspective that lower
and more lenient I P protections in developing countries are favourable to the realization of the righ t to
development). The relevance of the right to development was also foreshadowed in the 2001 statement of
the CESCR, supra note 3, at ¶¶ 1–2, 4.
5 As explained at notes 119 to 122 and accompanying text, the term “right to science and culture” is not yet in
general use, but is my proposed shorthand for the right recognized, inter alia, at Article 27 of the Universal De-
claration; Article 15 of the InternationalCovenant on Economic, Social and Cultural Rights; Article 31 of the
Children’s Convention; and Article XIII of the American Declaration. Universal Declaration, supra note 1; In-
ternational Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), art. 15, U.N. GAOR,
21st Sess., Supp. No. 16, Annex, U.N. Doc. A/6316 (Dec. 16, 1966), available at http://daccess-dds-ny.un.
on the Rights of the Child, G.A. Res. 44/25, art. 31, U.N. GAOR, 44th Sess., Supp. No. 49, Annex, U.N. Doc.
A/44/49 (Nov. 20, 1989), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/NR0/762/02/IMG/
NR076202.p df?OpenElement; Organization of American States , American Decla ration of the R ights
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