The UN Committee on Economic, Social and Cultural Rights (CESCR) recently released the ‘Draft version 2’ of its General Comment on Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This draft version is dated 2 January 2020. Article 15(1)(b) of the ICESCR recognises the right of everyone to ‘enjoy the benefits of scientific progress and its applications’ and, it is also sometimes referred to as the ‘right to science’.
The CESCR is a body of independent experts that monitors the implementation of the ICESCR. It also produces its own interpretation of the provisions of the ICESCR and these interpretations are called ‘General Comments’. The CESCR has previously published General Comments on the other provisions in Article 15(1) of the ICESCR. Thus, there is a General Comment on the right of creators to benefit from the protection of the moral and material interests in their creations that is recognised in Article 15(1)(c). There is also a General Comment on the right of everyone to take part in cultural life (sometimes referred to as the ‘right to culture’) that is recognised in Article 15(1)(a). The language in Article 15(1) of the ICESCR is based on a similar provision in Article 27 of the Universal Declaration of Human Rights.
Like the other General Comments, this draft General Comment on Article 15(1)(b) details the CESCR’s opinion on the normative content of this right, the elements of the right and its limitations, and the obligations of states with regard to this right. It also contains a section on special topics of broad application and one of the topics considered is the ‘privatisation of scientific research and intellectual property’. This post will focus on this aspect of the draft General Comment i.e. the discussion on the privatisation of scientific research and intellectual property.
The CESCR acknowledges in this draft General Comment that intellectual property (IP) can enhance the development of science and technology by, for instance, providing economic incentives for inventors via the patent system [para 64]. It however further notes that IP can have a negative impact on the advancement of science and access to its benefits in three ways [para 64]. Firstly, the CESCR notes that IP can lead to distortions in the funding of scientific research as such funds might only be available to projects that are profitable while projects that are crucial for the general welfare of society (but which may not be profitable) may not receive funding. Secondly, the CESCR notes that IP can prevent the sharing of the results of scientific research. In this regard, the CESCR points out that the excessive price of some scientific publications constitutes an obstacle to poor researchers, especially those in developing countries. Thirdly, according to the CESCR, IP can also prevent some people from accessing the benefits of scientific progress due to, for instance, the high prices that patent owners might charge for their patented products.
In order to address these problems, the CESCR makes two recommendations. Firstly, states ‘should provide adequate financial support for research that is important for the general welfare’ [para 66]. Secondly, in their national regulations and in international agreements on intellectual property, states should try to avoid ‘an unacceptable prioritization of profit for some over benefit for all’ and a ‘[b]alance must be reached between IP and the open access and sharing of scientific knowledge and the access to the benefits of science’ [para 66].
I agree with the CESCR’s first recommendation regarding the need for states to provide financial support for research that is important for the general welfare of their citizens. This is especially important in developing countries where funding is required not just for research but for the education and training of scientists and researchers. For instance, if developing countries want to significantly benefit from the protection of patent rights, it is essential for them to invest in the education and training of their citizens. Otherwise, the benefits of the patent systems in these countries will only accrue to foreigners. Unless, of course, one considers the importation of patented products into developing countries as a form of benefit.
The CESCR’s second recommendation regarding achieving a ‘balance’ between IP rights and access to the benefits of science however seems a bit abstract. The CESCR does not really provide any meaningful elaboration on concrete steps that states can take to achieve this ‘balance’. Importantly, the CESCR could have, for instance, made specific reference to some of the flexibilities already available to states under the TRIPS Agreement that can be used to achieve this balance. Thus, this aspect of the draft General Comment can be improved.