Right To Science: More Publicly Funded Research, Less IP, Panellists SayPublished on 8 October 2013 @ 2:51 pm
By Catherine Saez, Intellectual Property Watch
The Office of the UN High Commissioner for Human Rights (OHCHR) last week held a seminar on the right of everyone to enjoy the benefits of scientific progress and its applications. In some cases, intellectual property rights may not be helping, according to speakers.
Following a report made by the United Nations Special Rapporteur in the field of cultural rights to the UN General Assembly in May 2012, the Human Rights Council adopted a resolution requesting that OHCHR convene the seminar.
The objectives of 5-6 October seminar held at OHCHR headquarters in Geneva were to provide further clarification of the normative content of this particular right and clarify its relationship with other human rights and fundamental freedoms.
The programme encompassed a variety of subjects, such as state obligations; access to information, technology and knowledge; scientific freedom; and the relationship between the right to enjoy the benefits of scientific progress and its application and intellectual property rights.
Farida Shaheed, UN Special Rapporteur in the field of cultural rights, opening the seminar, said the right to share in scientific advancement and its benefits is recognised in Article 27 of the Universal Declaration of Human Rights, and in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights, which recognises the right for everyone to “enjoy the benefits of scientific progress and its applications.” This right also appears in regional frameworks, she said. Those international norms require a public goods approach to knowledge, innovation and diffusion, she added.
Access to science means that the benefits of science must be physically available and economically affordable on a non-discriminatory basis, she said. Affordability may require delinking the costs of research and development from product prices, she said, citing the World Health Organization’s Global strategy and plan of action on public health, innovation and intellectual property.
Conflict between Right to Science and IP
Of particular concern is the “conflict” between the right to science and intellectual property rights, Shaheed said. In her report presented to the 20th session of the Human Right Council, in May 2012, she said the intellectual property regime is a temporary monopoly that “should be managed in accordance with a common responsibility to prevent the unacceptable prioritization of profit for some over benefit for all.”
Flexibilities in the IP system are “important tools to ensure respect for human rights,” and need to be explored further and applied more consistently, she said.
The report further indicated that “legal scholars have increasingly questioned the economic effectiveness of intellectual property regimes in promoting scientific and cultural innovation. Scholars have found no evidence to support the assumption that scientific creativity is only galvanized by legal protection or that the short-term costs of limiting dissemination are lower than the long-term gain of additional incentives.”
Shadeed said during the seminar that it is worth reconsidering the “current maximalist intellectual property approach” to consider a minimalist approach to IP protection.
“The potential of intellectual property regimes to obstruct new technological solutions to critical human problems such as food, water, health, chemical safety, energy and climate change requires attention,” she said.
She also warned against the diminishing support of government in research and development, which is increasingly left to private entities. This trend is “reducing the ability of Governments to identify priority research areas, conduct research and disseminate resultant products,” she said in her report.
She also advised in her report that “states request legislative and policy advice from WIPO [World Intellectual Property Organization], including on how to use TRIPS flexibilities to accommodate particular national interests and development needs.” TRIPS refers to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.
According to Prof. Lea Shaver, associate professor of law and dean’s fellow at the Indiana University School of Law, science and technology hold the power to raise standards of living and promote other human rights. However, science and technology are not inherently good, she said, and advance whatever value they are guided by.
The vision of science to the service of humanity is threatened by science in the service of profit, which has come to be seen as the purpose of research and its primary incentive, she deplored. To call science a human right is to insist that its supply and direction, just as for healthcare and education, cannot be left up to market forces.
She also cautioned against “misinterpreting the IP rules negotiated in trade circles as reflecting any kind of human rights consensus.”
The international IP regime is often in tension with human rights, she said. Broad exceptions to and limitations on patents and copyright continue to be “extremely sensible.” The current goal of the international trade system is not to promote human rights but to secure advantage for IP exporting countries, she said.
Privatisation of University Research a Challenge
One of the current challenges to the right to science is the trend to privatise university research, she said, mentioning the Bayh-Dole model, which she said has been “widely criticised” in the United States but is “still increasingly being imitated abroad.”
“A legislation which obliges its universities to patent their researchers’ discoveries undermines and violates both the obligation to cultivate scientific and technological research as a public good, and violates academic freedom by interfering with the universities’ own determination on how to conduct and reward research,” according to Shaver.
The area of copyright law also reveals urgent conflicts, she said, between the privatisation of knowledge and the right to science. “We finally have the technological tools at our disposal to end the book famine that has traditionally plagued higher education and research in developing countries,” she said. “We need open access policies to remove the final copyright barriers.”
She mentioned the recently agreed-upon Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, as the first instance that WIPO has developed an agreement not around increasing IP protection but which focusses on exceptions and limitations to promote human rights (IPW, WIPO, 26 June 2013).
WIPO member countries are also currently discussing a possible instrument to provide exceptions and limitations to copyright for libraries and archives, as well as for educational, teaching and research institutions.
Margaret Vitullo, director of academic and professional affairs for the American Sociological Association, said “scientific freedom starts with scientists, but it spans all the way to the general public. Without scientific freedom, science is not produced, nor communicated, and thus the rights of the general public to access science is impinged.”
Scientific freedom and access are tightly linked concepts, she said, adding that it is understood that with scientific freedom comes scientific responsibility.
Lack of Research for Some Medicines, WHO Says
Peter Beyer, senior advisor, Department of Public Health, Innovation and Intellectual Property at the World Health Organization said the right to health includes core obligations such as provide essential medicines to people who need them.
The WHO developed an essential medicines list, and published its 18th edition, introducing essential medicines for children. Together those two lists include about 400 medicines, he said, comparing this number with the number of medicines registered in a developed country, such as Switzerland, which is about 3,000. Essential medicines should be available at all times in any health facility in any country, he said.
On innovation, he said that in some areas not enough R&D is undertaken such as with neglected diseases, which the WHO defines. There are other areas for which the health community has recognised that R&D has been neglected, such as antibiotics.
Industry has not invested enough money in recent years because the expected return on investment is not interesting enough, he explained. The world is now facing an increasing anti-microbial resistance and needs new antibiotics. Government have to take responsibility, he continued, saying that in the United States, the government gave grants to two companies to develop new antibiotics.
The lack of access cannot be blamed on intellectual property or the patent system, Beyer said, because looking at essential medicines, for the vast majority, there are very cheap generic versions available on the international market, he said.
But for new innovative products, the issue is more complicated. Fundamental questions ought to be asked, for example should the price of new medicine reflect the value or worth of medicine to shareholders or the value of the medicine to society, he said.
Questions he raised include: Are essential medicines public or private goods? Should the need for innovation and incentives be driven by social solidarity or should the price of the new medicine be based on what the market is willing to pay and be set by the inventor and owner?
The cost of new medical products is becoming unsustainable even for the world’s wealthier nations, some reaching US$100,000 per patient per year, Beyer said: “Unaffordable for most patients, most health budgets and most insurance companies.”
Research and development to achieve an innovative drug is a huge investment, he said, and costs have to be recouped through the price of the product, he said. “You need venture capital to invest in research,” or another solution is public funds financing research, and shifting RD to the public sector, he said.
There is a need to deconstruct the cost of R&D, but “divorce always cost money,” he quipped, and alternative funding has to be found.
That is one of the crucial policy issues, he said. It was the objective of a proposed global research and development treaty at the WHO, “but not many countries immediately supported the idea to have a global system where everybody contributes a share of money,” he said (IPW, Public Health, 27 May 2013).
If a global instrument is set up, it is not only the usual donor countries who should participate but the instrument should reflect ownership by developing countries and emerging economies too, he said. All countries need to take responsibility.
This is also an opportunity for emerging economies to show leadership in global health challenges, he concluded.
Catherine Saez may be reached at email@example.com.
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