COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ADOPTS STATEMENT ON INTELLECTUAL PROPERTY AND HUMAN RIGHTS

CESCR
27th session
26 Novembre 2001
Afternoon





The Committee on Economic, Social and Cultural Rights this afternoon completed its adoption of a 17-paragraph statement on intellectual property and human rights.

The Committee, on 27 November 2000, held a day of general discussion on article 15.1(c) of the International Covenant on Economic, Social and Cultural Rights, 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, which formed a basis for the Committee's drafting of the statement. The Committee also plans to prepare a general comment on the subject.

After adopting five out of the 17 paragraphs this morning, the Committee Experts continued to debate their draft this afternoon. Paragraph six of the draft text was accepted after an extensive debate and a series of amendments on the concept of individual human rights and intellectual property rights. According to the text, human rights are fundamental as they derive from human persons and intellectual property rights are instrumental, derived from intellectual property systems, in that they are a means by which States seek to provide incentives for inventiveness and creativity, which society might benefit from. Human rights are dedicated to assuring satisfactory standards of human welfare and well-being, while intellectual property regimes, although traditionally providing protection to individual authors and creators, are increasingly focused on protecting business and corporate interests and investments.

On the issue of accountability, the Committee says in the statement, "rights and obligations demand accountability: unless supported by a system of accountability, they can become no more than window-dressing". While the State holds the primary duty to respect, protect and fulfil human rights, other actors, including non-State actors and international organizations, carry obligations that should be subject to scrutiny. Accordingly, the adequate protection of human rights needs accessible, transparent and effective mechanisms of accountability to ensure that rights are respected, and where they are not, that redress is accorded to victims. A human rights approach to intellectual property protection requires that all actors are accountable for their obligations under human rights law, specially with regard to the adoption, interpretation and implementation of intellectual property systems.


In dealing with equality and non-discrimination, the statement says that human rights are based on the equality of all persons and their equal standing before the law. For that reason, human rights instruments place great emphasis on protections against discrimination. Articles 2(2) and 3 of the Covenant mandate that States parties undertake to guarantee that the rights enunciated in the Covenant can be exercised without discrimination of any kind and to ensure the equal rights of men and women to the enjoyment of all the rights set forth in the Covenant.

A paragraph in the statement is also devoted to the most disadvantaged and vulnerable while designing intellectual property protection. It says that States should ensure adequate protection for the human rights of the disadvantaged and vulnerable individuals and groups, such as indigenous peoples. A human rights-based approach focuses particularly on the needs of the most disadvantaged and vulnerable individuals and communities.

In connection with self-determination, the statement says that article 1(2) of the Covenant states that "All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation." The statement says that in negotiating and in adhering to international treaties on intellectual property, States should consider how that will affect their sovereignty over their resources and ultimately their capacity to protect the rights under the Covenant.

The statement says article 15 of the Covenant identifies a need to balance the protection of both public and private interests in knowledge. On one hand, article 15.1(a) recognizes the right of everyone to take part in cultural life and to enjoy the benefits of scientific progress and its application. On the other hand, article 15.1(c) recognizes 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 was the author. In adopting and reviewing intellectual property systems, States should bear in mind the need to strike a balance between the concurrent Covenant provisions so that private interests are not unduly advantaged and the public interests in widely accessing new knowledge are given due consideration.

The Committee in the statement says that international human rights law include the right of everyone to participate in significant decision-making processes that affect them; and it supports the active and informative participation of all those affected by intellectual property rights and a frank discussion in the design of intellectual property systems that includes all sectors of society.

The Committee observes in the statement that countries enjoy differing levels of development, resulting in different technological needs. While some countries might focus on the protection of technology, other countries might focus more on facilitating access. It is essential that forms of intellectual property protection facilitate and promote development cooperation, technology transfer and scientific and cultural collaboration. The statement considers of fundamental importance the integration of international human rights norms into the shaping and interpretation of intellectual property law.

When the Committee reconvenes at 10 a.m. on Tuesday, 27 November, it will meet in private to adopt concluding observations and recommendations on country reports already considered during its current session. The Committee's next public meeting is scheduled to be at 10 a.m. on Thursday, 29 November, during which it will adopt suggestions and general recommendations relating to its work. The Committee will finalize its three-week session on Friday, 30 November.



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