The Committee on Economic, Social and Cultural Rights: Civil Society Groups fear a rushed General Comment on “Intellectual Property”

The plans of a leading UN human rights body to finalize a General Comment on “Intellectual Property and Human Rights” in November has provoked calls from human rights and public interest organisations for greater opportunities for public input.

At stake is the content of a draft General Comment by the UN Committee on Economic, Social and Cultural Rights on issues related to the ‘moral and material interests of authors’ (CESCR). Civil society observers note that the process for its development has compromised the usual procedures for NGO consultations and input.

CESCR’s interest in the General Comment stems from Article 15.1(c) of the Covenant on Economic, Social and Cultural Rights which provides that States Parties recognise 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 is the author’.

The decision to produce a General Comment on this issue is the result of discussions over several years. In 2000, the CESCR, in cooperation with the World Intellectual Property Organization (WIPO), organised a one-day discussion on Article 15.1(c), attended by several NGOs and UN agencies. In 2001, the Committee adopted a detailed 8-page “Statement on Human Rights and Intellectual Property,” drafted by two of its experts (Mr. Riedel and Mr. Malinverni) with inputs from staff from the Office of the High Commissioner for Human Rights (OHCHR), WIPO, and human rights groups. The decision at that time to use the format of a “Statement” rather than a General Comment was, according to close observers of the Committee’s work, taken as a compromise between the desire to offer an authoritative legal opinion on what was clearly an increasingly important topic within the UN system and the practical impossibility of a swift production of a General Comment (which can take several years to complete through a consultation process among Committee experts). In Spring 2004, the CESCR initiated work on a General Comment on Article 15.1(c). As is the customary practice in these bodies, the General Comment was drafted by an expert (Mr. Riedel) and subsequently circulated among the Committee members.

A Conceptually Flawed Approach

A range of international legal experts from both NGOs and academia have expressed reservations about the draft General Comment and, in so doing, have registered several significant concerns with regard to the process for its development. Regarding the scope of the draft General Comment, Yochai Benkler, a Law Professor at Yale University notes that “The Committee’s choice to focus on one single subsection, Article 15.1(c), which deals with the author’s right, both moral and remunerative, is odd, to say the least, since Article 15 generally deals more broadly with creative and scientific freedom and access to its benefits.” Benkler argues that the choice to focus solely on Article 15.1(c), and “to do so in a way that, for all its well-intentioned caveats, conflates protection of the moral and material interests of actual human authors with the intellectual property rights regime, opens a window for dignifying the expansion of intellectual property law through TRIPS, WIPO, and bilateral Free Trade Agreements as an implementation of human rights.”

The current draft’s failure clearly and unambiguously to clarify that ‘intellectual property rights’ (a term not used in the Covenant) do not constitute ‘human rights’ has also attracted concern. “While intellectual property laws and policies may constitute one of the ways States Parties can implement Article 15.1(c), intellectual property rights do not constitute human rights, nor do intellectual property regimes constitute the only or even the best way of implementing Article 15.1(c),” notes Sisule Musungu, an international lawyer with experience in both IP and human rights law.

There have also been strong reactions to the draft’s approach to compulsory licensing (see Box 2). As currently formulated, the draft warns State Parties to “refrain from any [disproportionate] use of compulsory licenses.” According to Benkler, the draft’s admonition to States to be sparing in their use of compulsory licenses appears erroneously to rest on the assumption that “the basic way to protect the rights of authors under Article 15.1(c) is through intellectual property law, appropriately balanced against interests such as those of access to medicines.” Correcting this misconception, he emphasises that the reality of current invention systems is that the subjects of compulsory licensing are not individuals—whose rights the Convention is charged with protecting—but corporations “who have long since bought out the rights of the actual authors or inventor-scientists and have no claim to human rights.”

Given the conceptual shortcomings of the existing draft—and the significance of General Comments as a source of “soft” international law—NGOs and IP specialists have signalled strong concern about the rushed process for the finalisation of the General Comment.

An Inadequate Consultative Process

As the Committee plans to finalise the General Comment at its November 2004 session, usual procedures for civil society consultation and input appear to have been compromised. According to the written guidelines of the Committee, NGOs can indeed “address the Committee in writing during the stages of the drafting of a General Comment and make oral statements on specific points during the discussions.” To date, however, no discussion has taken place between Committee members and NGOs on the draft, except for a meeting convened by one NGO in September 2004, which was attended by two staff from the OHCHR but not the Committee experts. NGOs have been invited to attend a meeting with the Committee experts on November 11 to discuss amendments to the draft. This meeting will however take place only 11 days before the scheduled adoption of the General Comment by the CESCR in plenary. “While we welcome the initiative of the CESCR to draft a General Comment on this issue, we do regret that the Committee didn’t reach out more pro-actively to the people working to ensure fair and consistent intellectual property regimes at an earlier stage in the drafting process” says a representative of 3D -> Trade-Human Rights-Equitable Economy.

Human rights advocates argue that substantive consultations with civil society and independent experts should take place and that more time should be devoted to this process. “A General Comment that misinterprets the provisions of the Covenant or is drafted in a manner that makes it easily susceptible to misinterpretations could have devastating implications,” cautions Musungu. Alarmed that the current draft General Comment does not reflect the thrust of the Committee’s earlier “Statement on Human Rights and Intellectual Property,” civil society organisations active on intellectual property issues argue that the best option at this time would be for the Committee to defer adoption of the General Comment. “It makes no sense to enshrine in human rights law a contested regulatory system that leaves many artists and authors uncompensated, while leaving millions of people without access to medicines or educational materials,” warns Benkler. The Secretary of the CESCR declined to comment on the process.

The Committee on Economic, Social and Cultural Rights The CESCR is a body of eighteen independent experts elected for four-year terms. It was established in 1985 to supervise the implementation of the United Nations Covenant on Economic, Social and Cultural Rights. General Comments provide authoritative interpretations of the rights contained in that Covenant and States Parties’ obligations. The adoption of such General Comments by the UN human rights treaty bodies is an internationally accepted practice. Committees decide to draft a General Comment when they note the recurrence of an interpretation issue when examining country reports and believe they would benefit from formal clarification. Since 1989, the CESCR alone has adopted fifteen General Comments on several articles of the Covenant, ranging from the “right to water” and “right to education” to the “right to adequate food”.

Compulsory licensing A compulsory license is a license to exploit a patented invention granted by the state to a third party. The 2001 Doha Declaration on TRIPS and Public Health states: “each Member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted” (Article 5.b).