The Right to Access the Benefits of Science and Intellectual Property Rights

Plomer, Aurora

doi:10.1007/978-88-470-2032-0_4

Aurora Plomer²

1153 Accesses
3 Citations

Abstract

The question of whether intellectual property rights are fundamental human rights and what the limits of these rights may be, has acquired global urgency in the wake of the extension of intellectual property rights to foundational fields of knowledge in the life-sciences. An enduring puzzle is the rationale for the juxtaposition of the right of individual inventors with the right of everyone to share in the benefits of science in Article 27 of the Universal Declaration of Human Rights 1948. A commonly held view is that intellectual property rights are rooted in liberal and market oriented ideologies. This paper retraces the drafting history and shows that, in reality, Article 27(2) was opposed by liberal countries and supported by socialist South American countries. The second part seeks to explain the paradox through an analysis of the links between positivist and communitarian philosophies of human rights and Anglo-Saxon economic/utilitarian and continental legal cultures on the nature and purpose of intellectual property rights.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 89.00; Price excludes VAT (USA)

Softcover Book: USD 119.99; Price excludes VAT (USA)

Hardcover Book: USD 169.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
As noted by A. Chapman, Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications, Journal of Human Rights, 8:1–36, 2009 at 1.
2.
W. Schabas, Study of the Right to Enjoy the Benefits of Scientific Progress in y. Donders and V. Volodin Human Rights in Education, Science and Culture, UNESCO/Ashgate, 2007, at 290.
3.
See, for instance, J. Harrison, The Human Rights Impact of the WTO (Hart, 2007) and L. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U.C. Davis Law Review 971–1020 (2007).
4.
Notably, UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Report of the Secretary-General, Intellectual property rights and human rights, UN Doc. E/CN.4/Sub.2/2001/12/Add.1, 3 July 2001. ECOSOC, General Comment No. 17 (2005) on The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant. UNESCO Experts’ Meeting on the Right to Enjoy the Benefits of Scientific Progress and its Application, Amsterdam, 7–8 June 2007 and Italy, Italy, 16–17 July 2009.
5.
See for instance D. Ovett, Intellectual Property and Human Rights: Is the Distinction Clear Now? An Assessment of the Committee on Economic, Social and Cultural Rights’ General Comment no. 17, in Policy Brief 3 of 3D Organization, October 2006: “The right to the protection of moral and material interests of authors was repeatedly rejected from the article on “cultural rights,” during the drafting of the international covenants on human rights in the 1950s This was due to concerns of socialist countries at the time, that this article would be protecting an individual author’s rights in opposition to the rights of the community.”
6.
J. Morsink, The Universal Declaration of Human Rights (University of Pennsylvania Press 2009).
7.
UN mandate to the ECOSOC, based on Article 62 of the UN Charter on Human Rights (E/248).
8.
Known as ‘the 4 freedoms’.
9.
J. Morsink, The Universal Declaration of Human Rights, op. cit.
10.
For instance, Bill of Rights 1689 (England) and Claim of Right Act 1689 (Scotland). This applied to all British Colonies of the time, and was later entrenched in the laws of those colonies that became nations — for instance in Australia with the Colonial Laws Validity Act 1865 and reconfirmed by the Statute of Westminster 1931 Virginia Bill of Rights (June 1776). Preamble to the United States Declaration of Independence (July 1776). Declaration of the Rights of Man and of the Citizen (1789; France). Bill of Rights of the United States Constitution (completed in 1789, ratified in 1791).
11.
See P. Alston, Promoting Human Rights through Bills of Rights (Clarendon Press 2000).
12.
E/CN.4/AC.1/ SR1, p. 5, 10^th of June 1947.
13.
Article 44, E/CN.4/AC.1/3/Add.1, 356. Commission on Human Rights Drafting Cttee Report to ECOSOC, 11th June 1947.
14.
Lake Success, New York; 27^th January 1947 — 10th February 1947.
15.
Report of the First Session to the Commission, 3.
16.
E/CN.4/SR7, 31^st January 1947; E/CN.4/SR9, 1st February 1947; E/CN4.SR10, 4th February 1947; E/259.
17.
E/CN.4/AC.1/4, Annex 1, 5^th June 1947.
18.
Article 8.
19.
Article 9.
20.
Article 10
21.
Article 13.
22.
Article 14.
23.
Article 15 and 16.
24.
A document prepared by the secretariat set up the secretariat’s text and the UK’s side by side: E/CN.4/AC.l/3/Add.3.
25.
SR2, 13^th June 1947, at 6.
26.
SR4, 13^th June 1947 at 11.
27.
SR6, Meeting of 16^th June 1947, at 8. See also Report of First Session, at 4.
28.
Report of Drafting Committee to the commission on Human Rights — First Session, E/CN.4/21 1^st July 1947.
29.
E/CN.4/SR25, 2^nd December 1947, at 10.
30.
Ibid, 11.
31.
Ibid, 11.
32.
E/CN.4/SR28, p. 7, 4^th December 1947.
33.
E/CN.4/SR27, p. 5, 3^rd December 1947.
34.
Hansa Metha, Indian delegate (SR.15/p.2) quoted in Morsink, cit. at 15.
35.
E/CN.4/42/REV.1 — Revised Proposal [for a Decision to Prepare a Draft Bill and Declaration of Human Rights] / Submitted by the United Kingdom Delegation: 03/12/ 1947.
36.
E/CN.4/50 — Resolution Adopted [for a Decision to Proceed Without Delay to Consider the Draft Declaration on Human Rights Contained In Annex F and the Draft Articles Contained In Annex G of the Report of the Drafting Committee for Inclusion In a Convention] / Commission on Human Rights, 2nd Session: 04/12/ 1947.
37.
E/CN.4/AC.1/3/ADD.1 — International Bill of Rights Documented Outline. Part 1, Texts: 11/06/1947.
38.
A US proposal to collapse the list of social and economic rights into one Article declaring “Everyone has the right to a decent living; to work and advance his well-being to health, education and social security. There shall be equal opportunity for all to participate in the economic and cultural life of the community”, was not taken up. Article 9. The US Delegate submitted that the proposed Article 9 was “… an inclusive statement on social rights, and includes items in the HRDC Articles 29, 30, 31, 33, 3*+, 35 and 36. HRDC Article 32, on the right to a fair share of rest and leisure, is not specifically included, but is suggested by the addition of the phrase “advance his wellbeing”, and in the adjective “decent” describing “living”. Both of these phrases accentuate the right to good conditions of work and life. HRDC Article 28, on the right of citizens to public employment and public office, and HRDC Article 16, on the right to engage in all vocations and professions, are not specifically included, but are implied in the right of everyone to work. E/CN.4/36/ADD.1 Explanatory Note on Derivation of Declaration on Human Rights / Proposed by Representative of the United States on the Commission on Human Rights: 27/11/1947.
39.
Also noted by other scholars, notably J. Morsink, cit.
40.
Compare Article 9’s ‘inclusive’ statement of socio-economic and cultural rights in the US proposal for a Bill, omitted in the counterpart Covenant. E/CN.4/36/ADD.2 Parallel Passages In Human Rights Drafting Committee Text and United States Proposal: 05/12/ 1947 and E/CN.4/37 Proposal for a Human Rights Convention / Submitted by the Representative of the United States on the Commission on Human Rights: 26/11/ 1947.
41.
H. Steiner, P. Alston, R. Goodman, International Human Rights in Context 263 (OUP 2008).
42.
M. Green, Drafting History of the Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights, Background Paper submitted by Maria Green, International Anti-Poverty Law Center, New York, NY, USA, E/C.12/2000/15 9 October 2000.
43.
Morsink, cit., at 6.
44.
The preliminary draft, prepared by the Secretariat, was presented to the Committee on 4th June 1947 as document E/CN.4/AC.1/3, Draft Outline of International Bill of Rights (Drafting Committee on an International Bill of Human Rights, 1st session 9–25 June Lake Success, New York).
45.
E/CN.4/AC.1/3, at 356.
46.
See Report of the Committee on Economic, Social and Cultural Rights, Comment 17 (2005).
47.
The preliminary draft, prepared by the Secretariat, was presented to the Committee on 4th June 1947 as document E/CN.4/AC.1/3, Draft Outline of International Bill of Rights (Drafting Committee on an International Bill of Human Rights, 1st session 9-25 June Lake Success, New York).
48.
UN Doc. E/CN.4/AC.2/SR9, 3–4.
49.
On the centrality of disclosure in the patent system see J. C. Fromer, Patent Disclosure, 94 Iowa L. Rev. 539 (2009).
50.
W. Schabas, Study of the Right to Enjoy the Benefits of Scientific Progress in y. Donders and V. Volodin Human Rights in Education, Science and Culture (UNESCO/Ashgate, 2007) at 276.
51.
Report of the Working Group on the Declaration on Human Rights E/CN.4/57, 10^th December 1947, at 15. The report contains a comment attached to Article 35 stating that “it was understood that secret processes that have been patented should not be revealed” at 15.
52.
2^nd Session E/CN.4/77/Annex A, 16^th December 1947.
53.
Commission on Human Rights: Report to the Economic and Social Council on the 2nd Session of the Commission, held at Geneva, from 2 to 17 December 1947: 01/01/1948 at 18.
54.
Morsink, cit., at 219–220.
55.
E/CN.4/95 Report of 2^nd Session. Alternative text submitted by France: “Authors of creative works and inventors shall retain, apart from financial rights, a moral right over their work or discovery, which shall remain extant after the financial rights have expired (12–13).
56.
E/CN.4/AC.1/SR.15 — 15th Meeting, Monday, 23 June 1947:03/07/1947, at 5.
57.
Ibidem.
58.
For instance, on 6^th May 1948, the French delegation suggested that Article 30 replaced by 2 articles, 25 and 26, as follows: Article 25 Everyone has a right to rest and leisure. Rest and leisure should be ensured to everyone by laws or contracts providing in particular for reasonable limitations on working hours and for periodic vacations with pay. Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in the benefits that result from scientific discoveries. Article 26 Authors of creative works and inventors shall retain, apart from financial rights, a moral right over their work or discovery, which shall remain extant after the financial rights have expired. E/CN.4/95 — Report of the Drafting Committee [on an International Bill of Rights] to the Commission on Human Rights: 21/05/1948.
59.
Morsink, cit. at 220.
60.
Article XIII, Right to the benefits of culture. Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries. He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.
61.
E/CN.4/82/ADD.1 Comments from Governments on the Draft International Declaration on Human Rights, Draft International Covenant on Human Rights and the Question of Implementation: 16/04/1948. Economic & Social Council — Report of The Commission on Human Rights (6th Session) E/600(SUPP).
62.
E/CN.4/82/ADD.2 — Comments from Governments on the Draft International Declaration on Human Rights, Draft International Covenant on Human Rights and the Question of Implementation: 22/04/1948.
63.
Report of the 3^rd session of the Commission on Human Rights, Commission on Human Rights 3rd session 24 May–18 June Lake Success, New York E/800.
64.
International Draft Bill, Report of the 3^rd Session, E/800.
65.
A.C (p. 44) Economic and Social Council 7th session.
66.
A/C3/302.
67.
SR.215 — 215th Meeting, 25/08/1948 (NB). Soviet Union deplored that none of the economic and social rights were contained in the Draft Covenant, at 659).
68.
Proposed by the UN Conference on Freedom of expression, E/800 at 29.
69.
Proposed by the Union of South Africa, E/800 at 31.
70.
E/CN.4/SR.81The report of the third session of the Commission on Human Rights, E/800 and Add.1 and Add.2, was submitted to the seventh session of the Economic and Social Council. 28^th June 1948. The Economic and Social Council submitted the Draft Declaration to the Assembly on 26th August 1948. Resolution 151(VII) of 26 August 1948. Many expressed regret that it had not been possible to complete the draft Covenant and measures for implementation (E/SR.215 and E/SR.218).
71.
E/SR.215, at 650. The Soviet Union deplored that none of the economic and social rights were contained in the Draft Covenant (ibid, at 659).
72.
E/SR.215, at 650.
73.
A/C3/360 20^th November 1948.
74.
A/C3/360 Draft International Declaration of Human Rights: Joint Amendment to Article 25 of the Draft Declaration (E/800) / Cuba, France, Mexico: 20/11/1948.
75.
A/C.3/SR.150 before 150^th meeting and at 617.
76.
150^th meeting at 617.
77.
150^th meeting at 617.
78.
150^th meeting at 618.
79.
150^th meeting at 617.
80.
A/C.3/SR.151 151^th Meeting, at 627.
81.
A/C.3/SR.151 151^th Meeting, at p. 627 (the text also refers to another document (A/C3/361).
82.
A/C3/361 Draft International Declaration of Human Rights: Compromise Text for Article 25 of the Draft Declaration (E/800) / China: 22/11/1948.
83.
83^th meeting, at 618.
84.
150^th meeting at 621.
85.
150^th meeting, at 619.
86.
150^th meeting at 620.
87.
150^th meeting at 621.
88.
10^th meeting at 622.
89.
150^th meeting, at 618.
90.
150^th meeting, at 618.
91.
150^th meeting at 619.
92.
150^th meeting at 621.
93.
150^th meeting at 624.
94.
150^th meeting at 624.
95.
151^st meeting at 630.
96.
151^st meeting at 632.
97.
151^st meeting at 632.
98.
152^nd meeting at 634.
99.
See, for instance, Harrison, cit. and L. Lessig, Free Culture 215 (Penguin 2004).
100.
For a sustained critique of the distinction between positive and negative rights, see Sarah Fredman, Human Rights Transformed (OUP 2008).
101.
P. Alston et al, International Human Rights in Context: Law, Politics and Morals (OUP 2007).
102.
As exemplified in J. Locke, Two Treatises of Government (CUP 1964).
103.
See B. Sherman & L. Bently, The Making of Modern Intellectual Property Law (CUP 1999).
104.
C. May & S. Bell, Intellectual Property Rights: A Critical History (Lynne Ryenners 2006).
105.
H. Mitchell, The Intellectual Commons: Towards an Ecology of Intellectual Property, Lexington Books (2005).
106.
The origins of the infamous comment go back to Coke.
107.
See G. Ramsey, The Historical Background of Patents, 18 J. Pat. Off. Soc’y 6, 6–9 (1936).
108.
E. C. Walterscheid, The Early Evolution of the United States Patent Law: Antecedents (Part 2), 76 J. Pat. & Trademark Off. Soc’y 849, 855 (1994).
109.
W. Blackstone, Commentaries on the Laws of England, 346 (Oxford, Clarendon Press 1766); see also M. Coulter, Property in ideas: the patent question in mid-Victorian Britain (Thomas Jefferson Press 1992) at 7.
110.
O. Bracha, The Commodification of Patents 1600–1836: How Patents Became Rights and Why We Should Care [Symposium: Intellectual Property at a Crossroads], 38 Loyola of Los Angeles Law Review 177 (2004).
111.
E. Wyndham Hulme, The History of the Patent System under the Prerogative and at Common Law: A Sequel, 16 L.Q.R. 44, 52 (1900).
112.
Bracha, op. cit. at 189.
113.
W. Hulme, On the Consideration of the Patent Grant, Past and Present, 13 Law Q. Rev. 313, 315 (1897). For a survey of the changing character of the social benefits promised by patentees from the middle of the seventeenth century.
114.
And arguably have survived in the modern law of patents’ legal requirement that in addition to novelty and inventive-step, the invention should have ‘utility’ (in US law) or ‘industrial application’ in European patent law
115.
Bracha, op. cit., at 192.
116.
E. Coke, Institutes of the Laws of England 183 (1797) (1644).
117.
O. Bracha, op. cit., at 194.
118.
R. Deazley, M. Kretschmer, L. Bently, Privilege and Property: Essays on the History of Copyright (Open Book Publishers 2010).
119.
Bracha, cit. at 202.
120.
Bracha, cit. at 207. For a competing view see, A. Mossoff, Who Cares what Jefferson thought about Patents: Reevaluating the Patent Privilege in a Historical Context, 92 Cornell L. Rev. 953 (2007).
121.
See Coulter cited by Bracha at 207.
122.
Bracha, cit. at 208
123.
Cited by A. Mossoff, Rethinking the Development of Patents: An Intellectual History 1550–1800, S2 Hastings L.J. 1255, 1257 (2001).
124.
Id., at 1257
125.
Bracha, cit., fn215.
126.
U.S. Const. art. I, s 8, cl. 8.
127.
Advocates of the Jeffersonian and English conception of IP rights as limited positive rights, include E. C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (W.S. Hein & Co 2002), McLeod and Bracha. For a critique, see A. Mossoff, Who Cares What Jefferson thought about Patents: Reevaluating the Patent Privilege in a Historical Context, 92 Cornell L. Rev. 953 arguing that both Supreme Court judges and historians have understated (and misconstrued) the influence of the natural rights philosophy of the Enlightenment on the history of the intellectual property clause in the US Constitution and its judicial interpretation since.
128.
A. Mossoff, Rethinking the Development of Patents: An Intellectual History, 52 Hastings L.J. 1255.
129.
Bracha, cit. at 218.
130.
Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 13 The Writings of Thomas Jefferson 326, 334–35 (Andrew A. Lipscomb ed., 1903) [hereinafter Letter to Isaac McPherson].
131.
383 U.S. 1, 7–11 (1966).
132.
537 U.S. 186 (2003).
133.
Mitchell, cit. at 33.
134.
537 U. S. 186 (2003), Footnote 18. Note the “dual” theory of reward and incentive
135.
R. Deazley, M. Kretschmer, L. Bently, Privilege and Property: Essays on the History of Copyright (Open Book Publishers 2010).
136.
J. Locke, Of Civil Government. Second Treatise, chapter 5. Although Locke did not think that his labour theory of right justified ownership only when “…there is enough, and as good left in common for others.” At para. 27. See also para. 22 and 33. The moral foundations of Locke’s theory are discussed by Becker
137.
See for instance, R. A. Spinello & M Bottis, A Defense of Intellectual Property Rights (EE 2009) at 156.
138.
See P. Jaszi, Toward a Theory of Copyright: the Metamorphoses of Authorship, Duke L. J. 455–502 (1991). Sherman and Bently show how conceptions of ‘creativity” alongside other traditions influenced English Law The Making of Modern Intellectual Property Law; the British Experience 1760–1911 CUP, 1999.
139.
K. Marx, Economic and Philosophical Manuscripts (1844).
140.
B161; III 101.
141.
B171; III 314. For a detailed discussion see Simmons and Rockmore, The Philosophy of Karl Marx.
142.
For instance, Spinello argues that the Lockean approach requires that rights must be “properly configured to ensure that others are not harmed” at 156.

References

A. Chapman, Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications, Journal of Human Rights, 8:1–36, 2009 at 1.
Article Google Scholar
W. Schabas, Study of the Right to Enjoy the Benefits of Scientific Progress in y. Donders and V. Volodin Human Rights in Education, Science and Culture, UNESCO/Ashgate, 2007, at 290.
Google Scholar
J. Morsink, The Universal Declaration of Human Rights (University of Pennsylvania Press 2009 ).
Google Scholar
See P. Alston, Promoting Human Rights through Bills of Rights (Clarendon Press 2000 ).
Google Scholar
H. Steiner, P. Alston, R. Goodman, International Human Rights in Context 263 (OUP 2008 ).
Google Scholar
C. May & S. Bell, Intellectual Property Rights: A Critical History (Lynne Ryenners 2006 ).
Google Scholar
G. Ramsey, The Historical Background of Patents, 18 J. Pat. Off. Soc’y 6, 6–9 (1936).
Google Scholar
E. C. Walterscheid, The Early Evolution of the United States Patent Law: Antecedents (Part 2), 76 J. Pat. & Trademark Off. Soc’y 849, 855 (1994).
Google Scholar
O. Bracha, The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care [Symposium: Intellectual Property at a Crossroads], 38 Loyola of Los Angeles Law Review 177 (2004).
Google Scholar
E. Wyndham Hulme, The History of the Patent System under the Prerogative and at Common Law: A Sequel, 16 L.Q.R. 44, 52 (1900).
Google Scholar
W. Hulme, On the Consideration of the Patent Grant, Past and Present, 13 Law Q. Rev. 313, 315 (1897). For a survey of the changing character of the social benefits promised by patentees from the middle of the seventeenth century.
Google Scholar
E. Coke, Institutes of the Laws of England 183 (1797) (1644).
Google Scholar
R. Deazley, M. Kretschmer, L. Bently, Privilege and Property: Essays on the History of Copyright (Open Book Publishers 2010 ).
Google Scholar
A. Mossoff, Rethinking the Development of Patents: An Intellectual History 1550–1800, S2 Hastings L.J. 1255, 1257 (2001).
Google Scholar
R. Deazley, M. Kretschmer, L. Bently, Privilege and Property: Essays on the History of Copyright (Open Book Publishers 2010 ).
Google Scholar
K. Marx, Economic and Philosophical Manuscripts (1844).
Google Scholar

Download references

Author information

Authors and Affiliations

University of Sheffield, United Kingdom
Aurora Plomer (Professor of Law and Bioethics)

Authors

Aurora Plomer
View author publications
You can also search for this author in PubMed Google Scholar

Editor information

Editors and Affiliations

Department of Juridical Sciences, University of Ferrara, Italy
Roberto Bin , Sara Lorenzon & Nicola Lucchi , &

Rights and permissions

Reprints and permissions

Copyright information

About this paper

Cite this paper

Plomer, A. (2012). The Right to Access the Benefits of Science and Intellectual Property Rights. In: Bin, R., Lorenzon, S., Lucchi, N. (eds) Biotech Innovations and Fundamental Rights. Springer, Milano. https://doi.org/10.1007/978-88-470-2032-0_4

Download citation

DOI: https://doi.org/10.1007/978-88-470-2032-0_4
Publisher Name: Springer, Milano
Print ISBN: 978-88-470-2031-3
Online ISBN: 978-88-470-2032-0
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)

Publish with us

Policies and ethics