There is no human right to patent protection. Or as the Special Rapporteur in the field of cultural rights, Farida Shaheed, aptly puts it in her recent report, ‘There is no human right to patent protection under article 15 of the International Covenant on Economic, Social and Cultural Rights.’
It is hoped that this recent report by Shaheed, which addresses the implications of patent policy for the human right to science and culture, will offer some sort of clarity to those who still believe that Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides a basis for saying that patent rights (or indeed any other form of intellectual property rights) are human rights.
It is true that Article 15(1)(c) of the ICESCR 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 is the author’. However, anyone who has examined the historical development of Article 15(1)(c) of the ICESCR, or that of its progenitor i.e. Article 27(2) of the UDHR, already knows that it is wrong to rely on either or both of these two provisions to assert that intellectual property rights are human rights.
It is interesting to also note that Shaheed’s report also goes further to suggest that, although the flexibilities contained in the TRIPS Agreement remain optional from the perspective of trade law, from a human rights perspective, these flexibilities ‘are often to be considered as obligations’.