UN Committee Adopts Position On IP And Human Rights

A half-decade after it began, a United Nations committee on 21 November adopted a document intended to clarify nations’ responsibilities on intellectual property and human rights. The text, while not legally binding, could bolster legal disputes in other international and national bodies, committee members said afterward.

The still-confidential adopted text, referred to as a General Comment, aims to identify key human rights principles deriving from the International Covenant on Economic, Social and Cultural Rights. The latest General Comment is limited to Article 15.1.c of the covenant, which requires the protection of authors of written, music, art and other works.

The text was adopted by the UN Committee on Economic, Social and Cultural Rights, which started work on it in 1999. The daylong adoption meeting was considered public, but the document being discussed was kept secret so that public attending could not follow the references made by committee members as they went paragraph by paragraph. The final text may finally be made public later this week.

Non-governmental organisations, such as Geneva-based 3D, were active in the drafting process. NGOs had said they hoped the committee would strike a balance between human rights and intellectual property, according to Jaime Marchan Romero, a committee member from Ecuador. “This has been achieved,” he said afterward. “We have stated a very clear difference, that they are two very different concepts, because human rights are not subject to any negotiation, while the other is economic.”

Lead drafter Eibe Riedel, a law professor at the University of Mannheim, Germany, said, “The significance of this interpretation is that states, when they have to report to our committee once every five years, will have to report on [Article 15.1.c], which had never been done before.”

That means if a state does not respect intellectual property rights or allows actions that denigrate the human rights of authors they will be asked about it. Riedel said it likely would fall to non-governmental organisations to inform committee members of violations in countries before the governments report to the committee. “Now if NGOs are clever, they will use this,” he said. Victims may be entitled to compensation or satisfaction, according to committee members.

The document focuses on the relationship between governments and authors, not industry and authors, said Riedel, adding that it is the duty of the state to protect authors. He said during the meeting, “Under our mandate, we cannot hold [the business sector and private research institutions] responsible. That would be going too far.”

The World Intellectual Property Organisation, among other groups and organisations, contributed to the drafting process.

The General Comment includes mentions, supported by several Latin American countries among others, of the importance of biodiversity as well as traditional and indigenous knowledge, members said. But Riedel said this document could not be allowed to become “the back door” for what states cannot agree on elsewhere related to indigenous rights.

The document also cites the responsibility to ensure access to medicines, one member said.

Riedel took positions during the meeting that appeared to favour developed countries. He said it was necessary for the committee to make it clear it worked within existing rules and was not making new ones.

By focusing on author’s rights, Riedel said the committee was trying to say, “Let’s not get into the deep waters of changeable IP regimes.”

Marchan Romero said after the adoption that non-governmental groups meeting with the committee in the past would be pleased. “The text will far surpass the hopes and expectations of these people,” he said. “We have really achieved something that exceeds our expectations.”

Marchan Romero said he is “absolutely certain” the instrument will guide the committee in its future work.

Riedel agreed that it would contribute to future work. “This General Comment is a carefully drafted, modest introduction to the vast realm of intellectual property and human rights,” he said.