TRIPS Agreement
In November 2002, Rights and Humanity provided a legal opinion to the Committee on Economic, Social and Cultural Rights on how the Committee could interpret the intellectual property rights under Article 15 of the Covenant in the context of the Trade-Related Intellectual Property (TRIPS) Agreement adopted by the World Trade Organisation (WTO).
The Issues
The TRIPS Agreement tightens intellectual property rights and introduces an enforceable global standard within the WTO process. Prospective member states of the WTO are obliged to adopt the TRIPS Agreement. But it was feared that the TRIPS Agreement would impede access to essential drugs in developing countries and undermine the protection of traditional knowledge and the resource rights of indigenous peoples. For instance, by extending patent protection from process patents to product patents, the TRIPS Agreement reduced the possibilities for local production of cheaper versions of important life-saving drugs, such as those required for cancer and HIV/AIDS.
Whilst, in the past, life forms - plants and animals – had been excluded from patents in many countries, the TRIPS Agreement requires all WTO members to permit patents on micro-organisms and microbiological and non-biological processes. As a result, “bio-prospecting” has mushroomed, with scientists “reinventing” and patenting products and processes that communities have held for centuries. The TRIPS Agreement thus disproportionately benefits technologically advanced countries.
Rights and Humanity’s Solution
The TRIPS Agreement recognises the importance of ethical and other considerations by allowing a country to refuse to grant a patent if the commercial exploitation of the invention is prohibited on grounds of public order or morality, including if its exploitation might be dangerous to life or health, or seriously prejudicial to the environment.
Rights and Humanity proposed that the impact on the enjoyment of human rights be taken into account when determining the balance between the rights of the creator and the public interest. By considering the impact of an intellectual property convention or the individual grant of a copyright or patent on the enjoyment by others of, for instance, the right to education or health, or the right to benefit from scientific progress, our understanding of public interest can be strengthened.
The Committee on Economic, Social and Cultural Rights found our analysis of Article 15 helpful and subsequently asked us to assist in drafting a General Comment on the Right to Participate in Cultural Life.