The Human Rights Paradox: Intellectual Property ...

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Human Rights Quarterly, Volume 35, Number 1, February 2013, pp. 143-175 (Article) 3XEOLVKHGE\-RKQV+RSNLQV8QLYHUVLW\3UHVV DOI: 10.1353/hrq.2013.0015

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HUMAN RIGHTS QUARTERLY

The Human Rights Paradox: Intellectual Property Rights and Rights of Access to Science Aurora Plomer* Abstract The right of everyone to share in the benefits of science has been enshrined in human rights instruments since the last century, originally in Article 27 of the Universal Declaration of Human Rights (UDHR) and subsequently in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right was generally perceived as “obscure” and its interpretation widely neglected until the expansion of the international intellectual property (IP) regime under the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) prompted an upsurge of legal scholarship and reports from international organizations seeking to address the “human rights paradox.” The paradox is claimed to arise from the juxtaposition in human rights instruments of individual rights over intellectual creations against the rights of everyone to “share in scientific advancement and its benefits.” This article draws on archived documentation to show that the paradox rests on a conceptual obfuscation of human rights and IP rights and is at odds both with the historical record on the aims of the drafters of the UDHR and the philosophical and legal foundations of human rights and IP rights. The drafting history of Article 27 shows that delegations from South American socialist countries backed the French initiative to include rights of authors and inventors to the protection of their intellectual creations, while the US, UK, and former Anglo-Saxon colonies opposed the

* Aurora Plomer, LL.B., B.A., M.A., Ph.D., holds a chair in law and bioethics at the University of Sheffield (UK) and is Director of the Sheffield Institute of Biotechnology, Law and Ethics. I am grateful for the support of the Wellcome Trust and Brocher Foundation, which offered me a visiting fellowship to research the UN archives in Geneva, Switzerland, and for the assistance of the UN librarian who unearthed original documents. I benefitted greatly from the congenial environment and interaction with the other visiting fellows. Human Rights Quarterly 35 (2013) 143–175 © 2013 by The Johns Hopkins University Press


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proposal to the very end. Yet, behind the paradoxical political alignments there are important areas of convergence on the underlying philosophies and moral rationales which led to the adoption of Article 27 of the UDHR.

i. Introduction The right of everyone to share in the benefits of science has been enshrined in human rights instruments since the last century, originally in Article 27 and subsequently in Article 15.1 The right was generally perceived as “obscure” and its interpretation widely neglected2 until the expansion of the international IP regime under the TRIPs agreement prompted an upsurge of legal scholarship and reports from international organizations seeking to address the “human rights paradox.” 3 The paradox is claimed to arise from the juxtaposition in human rights instruments of individual rights over intellectual creations against the rights of everyone to “share in scientific advancement and its benefits.”4 This article draws on archived documentation to show that the paradox rests on a conceptual obfuscation of human rights and IP rights and is at odds both with the historical record on the aims of the drafters of the UDHR and the philosophical and legal foundations of human rights and IP law.5 The first part of the article identifies the emerging tensions between human rights and IP rights. The second part examines the theoretical foundations of human rights and IP rights to guide the analysis of the perplexing political alliances on the drafting of Article 27, whereby South American socialist countries pressed for the inclusion of private rights of authorship against persistent opposition from liberal/market oriented economies. The last part shows how the political compromise in Article 27 discloses a principled

1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., art. 27, U.N. Doc. A/RES/3/217A (1948) [hereinafter UDHR]; International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 15, U.N. Doc. A/6312 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]. 2. As noted by Audrey R. Chapman, Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications, 8 J. Hum. Rts. 1, 1 (2009). 3. Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 Apr. 1994, reprinted in 33 I.L.M. 1197 (1994) [hereinafter TRIPS]; see, for instance, James Harrison, The Human Right Impact of the World Trade Organization (2007); Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U.C. Davis L. Rev. 971 (2006–2007); Intellectual Property and Human Rights: Enhanced Edition of Copyright and Human Rights (2d ed. Paul L.C. Torremans ed., 2008) [hereinafter Intellectual Property and Human Rights]. 4. UDHR, supra note 1. 5. Id.

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basis for the containment of IP rights regimes, lending further support to a growing movement underway to reconceptualize the principled basis and grounding of Article 27.6 ii. The Global Expansion of IP Rights The questions of whether IP rights are fundamental human rights and what the normative content and limits of these rights may be has acquired global urgency in the wake of the World Trade Organization’s (WTO) adoption of the TRIPS agreement in 1994 as well as the expansion of the subject matter of IP rights and patents to knowledge in foundational fields of science with potential biomedical applications. The TRIPS agreement has scaled up the IP regime to a global level by forcing the adoption of minimum international IP standards on developing and developed countries alike.7 As noted by Laurence Helfer, unlike prior international IP agreements negotiated under the auspices of the World Intellectual Property Organization (WIPO), TRIPs “has teeth.”8 It contains detailed, minimum standards of protection that are enforceable through the WTO dispute settlement system backed up by the threat of retaliatory sanctions.9 The hard-hedged trade agreement was justified as an enabling, capacity building international framework that would enhance investment, creativity, knowledge transfer, and innovation both in developing and developed countries. Yet empirical evidence of the economic value of IP has been notoriously elusive and inconclusive.10 In addition, the theoretical rationale of IP rights and their enforcement through the WTO system for the liberalization of trade has been critiqued as incoherent to

6. Id. 7. TRIPS, supra note 3; J.H. Reichman, Universal Minimum Standards of Intellectual Property Protection under the TRIPS Component of the WTO Agreement, 29 Int’l Law. 345, 345 (1995). The 157 members of the World Trade Organization must adhere to its standards. Understanding the WTO: The Organization: Members and Observers, WTO, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (157 members as of 24 Aug. 2012). 8. Laurence R. Helfer, Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 Yale J. Int’l L. 1, 2 (2004). 9. Id. at 11. 10. Richard A. Posner, Intellectual Property: The Law and Economics Approach, 19 J. Econ. Persp. 57, 59 (2005). Unfortunately, economists do not know whether the existing system of intellectual property rights is, or for that matter whether any other system of intellectual property rights would be, a source of net social utility, given the costs of the system and the existence of alternatives sources of incentives to create such property.

Id.; see also Joseph E. Stiglitz, Knowledge as a Global Public Good, in Global Public Goods: International Cooperation in the 21st Century 308, 308–09 (Inge Kaul et al. eds., 1999).

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the extent that rights of exclusion and monopolies encroach on the liberal ideal of promoting free trade and carry the risk of stifling economic growth.11 Not surprisingly, TRIPS has provoked considerable criticism from developing countries reluctantly pressured into signing up and from international agencies working on health and development.12 The fear is that global entrenchment of IP rights through TRIPS will primarily benefit rich countries at the expense of developing countries and encroach on the fundamental rights to health, food, and education of the poor.13 TRIPS came to a head-on clash with the UN human rights regime in 2000 when a UN Sub-Commission on the Protection and Promotion of Human Rights adopted Resolution 2000/7 on “Intellectual Property Rights and Human Rights” containing a trenchant critique of TRIPS.14 The resolution was followed in 2001 by a report from the UN High Commissioner for Human Rights analyzing the links between TRIPS and human rights instruments through the lens of the right to health.15 The report asserts the primacy of human rights obligations over TRIPS, voicing concerns that the effect of TRIPS would be to price out the development of cheap generics in developing countries and would not produce the anticipated knowledge transfer in high tech fields because of the stark inequalities in the knowledge bases of developed and developing economies.16 Neither was it anticipated that the investment generated through TRIPS would realistically benefit the poor as it was most likely anticipated to go to products for the treatment of diseases afflicting the rich and affluent in developed countries. The UN Sub-Commission on Human

11. William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law (2003). Economic critiques include: Neil McCulloch, L. Alan Winters & Xavier Cirera , Trade Liberalization and Poverty: A Handbook (2001); Keith E. Maskus, Intellectual Property Rights in the Global Economy (2000). 12. Susan K. Sell, TRIPs and the Access to Medicines Campaign, 20 Wis. Int’l L.J. 481, 481 (2001–2002). “TRIPS was a product of tireless and effective agency and economic coercion.” Id.; Robert Weissman, A Long, Strange TRIPS: The Pharmaceutical Industry Drive to Harmonize Global Intellectual Property Rules, and the Remaining WTO Legal Alternatives Available to Third World Countries, 17 U. Pa. J. Int’l Econ. L. 1069, 1096 (1996); Peter Drahos, Developing Countries and International Intellectual Property Standard-Setting, 5 J. World Intell. Prop. 765, 769–70 (2002). 13. Joseph Straus, Comment, Bargaining Around the TRIPS Agreement: The Case for Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property Transactions, 9 Duke J. Comp. & Int’l L. 91, 95 (1998–1999); Peter K. Yu, Access to Medicines, BRICS Alliances, and Collective Action, 34 Am. J. L. & Med. 345, 358 (2008); G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 Duke L.J. 829 (1994–1995). 14. Intellectual Property Rights and Human Rights, adopted 17 Aug. 2000, Res. 2000/7, U.N. OHCHR, Sub-Comm’n on the Promotion and Protection of Hum. Rts., 25th mtg. (2000). 15. The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the High Commissioner, U.N. ESCOR, 52nd Sess., U.N. Doc. E/CN.4/Sub.2/2001/13 (2001). 16. Id.

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Rights followed on with a resolution on Intellectual Property and Human Rights in 2001 welcoming both initiatives and reiterating that an “actual or potential conflict exists between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights, in particular the rights to self-determination, food, housing, work, health and education, and in relation to transfers of technology to developing countries.”17 This marked the beginning of a rapid expansion of multiple interventions and initiatives from human rights agencies, including the Joint United Nations Programme on HIV/AIDS (UNAIDS), Economic and Social Council (ECOSOC), World Health Organization (WHO), and recently United Nations Education, Scientific and Cultural Organization (UNESCO), aimed at containing and limiting the impact of IP rights on access to essential goods.18 In 2001, the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) was adopted to clarify the right of governments to issue compulsory licenses to protect public health and facilitate access to medicines in circumstances of “national emergency.”19 But the uncertain and limited reach of the Doha Declaration prompted public health officials, economists, nongovernmental organizations (NGOs), and scholars in 2005 to press the WHO to adopt a Medical Research and Development Treatment Treaty (MRDT), which would contain much broader exceptions to patents rights.20 The MRDT has lost momentum, but other ongoing international initiatives since include cooperation between WTO, WIPO, and WHO to monitor the public health impact of TRIPS. The trilateral ongoing cooperation on intellectual property and public health between WTO, WIPO, and WHO21 follows 17. Intellectual Property and Human Rights, adopted 16 Aug. 2001, Res. 2001/21, U.N. OHCHR, Sub-Comm’n on Hum. Rts., 26th mtg., ¶ 11 (2001). 18. Intellectual Property Rights and Human Rights, Report of the Secretary-General, U.N. ESCOR, Comm’n on Hum. Rts., 52nd Sess., U.N. Doc. E/CN.4/Sub.2/2001/12/Add.1 (2001); 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 is the Author (article 15, paragraph 1 (c), of the Covenant), General Comment No. 17 (2005), U.N. ESCOR, 35th Sess., U.N. Doc. E/C.12/GC/17 (2006); Right to Enjoy the Benefits of Scientific Progress and its Application, UNESCO Experts’ Meeting, Amsterdam, 7–8 June 2007, and Italy, 16–17 July 2009. 19. Declaration on the TRIPS Agreement and Public Health, adopted 14 Nov. 2001, Doha WTO Ministerial Conference, 4th Sess., WTO Doc. WT/MIN(01)/DEC/2 20, ¶ 5(c) (2001). The Declaration states that the TRIPS agreement does not and should not prevent members from taking measures to protect public health. “Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.” Id. ¶ 4. 20. See Helfer, Toward a Human Rights Framework for Intellectual Property, supra note 3, at 1008. 21. For instance, the WHO’s Global Strategy and plan of action on public health, innovation and intellectual property of May 2008 mandates WHO to cooperate with member states, WTO, and WIPO to improve access to medicines in developing countries. Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property,

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the publication of a report in 2006 by a special commission appointed by WHO on Public Health, Innovation, and IP.22 The report is premised on the view that human rights treaties create a “legal imperative” and obligation on state signatories to take steps to fulfill fundamental rights, notably the right to health, which takes precedence over states’ legal obligations under TRIPS.23 In developed economies, the race to patent the human genome and the expansionist policies of leading patent offices and courts around the world on patentable subject matter in the 1980s and 1990s have heightened concerns over the downstream stifling impact on research and clinical applications.24 In the US, the expansion was fuelled partly by the passing of the Bay-Dole Act in 1980, described in The Economist in 2002 as “the most inspired piece of legislation to be enacted in America over the past half-century,”25 claimed to “lead to the creation of 7,000 new businesses based on the research conducted at U.S. Universities” where previously there was none. 26 There is little empirical work evidencing the anticipated beneficial effect on medical innovation, commercialization, and access to gene therapies of the 16,000 gene patents granted by the United States Patent and Trademark Office (USPTO).27 Instead, the most comprehensive

22. 23. 24.

25. 26. 27.

adopted 24 May 2008, World Health Assembly, 61st Sess., WHA Doc. WHA61.21 (2008), available at http://apps.who.int/gb/ebwha/pdf_files/A61/A61_R21-en.pdf. WIPO’s Development Agenda, adopted at the 2007 General Assembly, mandates WIPO “to intensify its cooperation on IP related issues with United Nations agencies, according to Member States’ orientation, in particular UNCTAD, UNEP, WHO, UNIDO, UNESCO and other relevant international organizations, especially the WTO in order to strengthen the coordination for maximum efficiency in undertaking development programs.” The 45 Adopted Recommendations under the WIPO Development Agenda, 2007 WIPO General Assembly art. 40 (2007), available at http://www.wipo.int/ip-development/en/ agenda/recommendations.html. In 2011, WIPO launched “Re:Search,” a searchable public database of IP assets and resources to support research for neglected diseases. WIPO Re:Search, WIPO, available at http://www.wipo.int/research/en/. The WIPO initiative is partnered with pharmaceutical companies a non-governmental organization, BIO Ventures for Global Health. BIO Ventures for Global Health homepage, BIO Ventures for Global Health, available at http://www.bvgh.org/. WHO, Public Health: Innovation and Intellectual Property Rights (2006). The report mentions TRIPS no less than 118 times. Id. Id. at 9, 22. The report rightly notes that the obligation is not utopian. Id. Ikechi Mgbeoji & Byron Allen, Patent First, Litigate Later! The Scramble for Speculative and Overly Broad Genetic Patents: Implications for Access to Health Care and Biomedical Research, 2 Can. J .L. & Tech. 83 (2003). See also Margo A. Bagley, Patent First, Ask Questions Later: Morality and Biotechnology in Patent Law, 45 Wm. & Mary L. Rev. 469 (2003–2004). Innovation’s Golden Goose, Economist, 12 Dec. 2002, available at http://www.economist. com/node/1476653. Gene Quinn, Supreme Court Affirms CAFC in Stanford v. Roche on Bayh-Dole, available at http://www.ipwatchdog.com/2011/06/06/supreme-court-affirms-cafc-in-stanford-vroche-on-bayh-dole/id=17594/. For an analysis of the theoretical and empirical difficulties in developing robust conclusions on the economic impact of the patent system, see Adam B. Jaffe, The U.S. Patent System in Transition: Policy Innovation and the Innovation Process, 29 Res. Pol’y 531, 531 (2000); Adam B. Jaffe & Josh Lerner, Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It (2004).

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empirical study to date on the impact of gene patents and licensing practices on diagnostic gene tests, commissioned by the US Secretary of Health and published in 2010, supports the critics’ fears. The Secretary’s Advisory Committee on Genetics, Health, and Society’s (SACGHS) report found clear evidence of adverse impact on clinicians and patients’ access to diagnostic tests, as well as threats “to the development of multiplex testing, parallel sequencing, and whole-genome sequencing, the areas of genetic testing with the greatest potential future benefits.”28 A majority of the SACGHS committee endorsed a recommendation to the US Secretary of Health to support the introduction of exemptions from liability for infringement of patent claims on genes developed for patient-care and research purposes, in reliance on the Doha Declaration which emphasizes that TRIPS must be interpreted “in a manner supportive of public health”29 and “can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health.”30 The growth and global expansion of the IP rights regime over the past decade is causing considerable tensions and uncertainty within the multiple and complex institutions that make up the international legal system as to their relative status, competence, and authority as well as the legal reach, coherence, interpretation, and national implementation of the norms that they generate. The result has been said to be “increasingly dysfunctional: acrimonious and unresolved clashes over substantive rules and values, competition among international institutions for policy dominance, and a proliferation of fragmented and incoherent treaty obligations and nonbinding norms.”31 As patent offices, courts, legislatures, international organizations, 28. Secretary’s Advisory Committee on Genetics, Health, and Society, Gene Patents and Licensing Practices and Their Impact on Patient Access to Genetic Tests, Dep’t of Health & Hum. Services 85–86 (2010) [hereinafter SACGHS Report] (suggesting that exclusive monopolies on diagnostic tests are creating “significant” problems for doctors and patients). 29. SACGHS Report, supra note 28; See Declaration on the TRIPS Agreement and Public Health, supra note 19, ¶ 17. 30. SACGHS Report, supra note 28. A minority of the committee disagreed. Id. 31. Helfer, Toward a Human Rights Framework for Intellectual Property, supra note 3, at 973. For an analysis of the interplay of political negotiations engendered by the complexity and fragmentation legal rules in this field, see Kal Raustiala, Density and Conflict in International Intellectual Property Law, 40 U.C. Davis L. Rev. 1021, 1025 (2006–2007). First, new international rules and institutions are rarely negotiated on a clean slate. As a result rule makers are not able to choose any substantive legal rule(s) they might favor; frequently they are limited by the existing constellation of rules and, most importantly, the political interests these rules have engendered. Second, intensified forum-shopping activities are likely to exist. Third, “[a]s substantive IP rules multiply, they increasingly conflict and compete with one another.” Id. at 1027. Finally, because of a lack of wellspecified doctrines governing the resolution of conflicts between inconsistent international rules, “[r]enegotiation or political resolution of a conflict is . . . often more likely than adjudication” in a regime complex. Id. at 1028. Negotiators will also deploy devices such as “savings clauses” to demarcate boundaries between regimes and disentangle events in one forum from another. Id. See also Peter K. Yu, International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia, 2007 Mich. St. L. Rev. 1, 25–26 (2007).

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industries, and scholars reflect on the growing legal complexity and practical implications of the global expansion of IP rights, the elucidation of the normative content of Article 27 and Article 15, and the conceptual relationship between IP rights and human rights has become ever more pressing.32 Despite a relatively recent wave of interest from scholars on the interface between IP rights and human rights, the normative grounding of IP rights and the right to access the benefits of science enshrined in human rights instruments remains largely “skeletal and under-theorized” with foundational questions on the nature and status of these “rights remaining unanswered.”33 Bringing greater conceptual clarity on the nature of the rights enshrined in Articles 27 and 15, their legal status, normative content, and purpose is critical to promote coherence in the increasingly fragmented international legal environment.34 How is the right of everyone to the protection of their moral and material interests in Article 27(2) of the UDHR and Article 15(c) of the ICESCR to be understood?35 Are IP rights fundamental human rights? And how much weight do Articles 27(2) and 15(c) require to be given to the private right of individuals to the protection of their “moral and material interests” against those of society to share in the benefits of science?36 The next section reviews the current state of scholarship on IP rights and human rights to show how different, but also overlapping, analyses leave out some foundational questions on the paradoxical co-existence and conflict of IP rights and human rights. A. Human Rights and IP Rights The relationship between IP rights and human rights has been analyzed through four different lenses. While there is little dispute between official reports and academic writings that Article 27 and Article 15 require a balance to be struck between individual rights and public rights of access to science, there are critical differences on the foundational principles that are claimed to guide the balancing exercise.37 A large body of legal scholarship

32. UDHR, supra note 1; ICESCR, supra note 1. 33. Helfer, Toward a Human Rights Framework for Intellectual Property, supra note 3, at 976. 34. UDHR, supra note 1; ICESCR, supra note 1. 35. UDHR, supra note 1, ¶ 2; ICESCR, supra note 1, ¶ c. 36. Id. 37. Chapman, supra note 2; Laurence R. Helfer, Human Rights and Intellectual Property: Conflict or Coexistence?, 5 Minn. Intell. Prop. Rev. 47 (2003), republished in 22 Neth. Hum. Rts. Q. 167 (2004) [hereinafter Conflict or Coexistence]; Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. Davis L. Rev. 1039 (2006–2007); Estelle Derclaye, Intellectual Property Rights and Human Rights: Coinciding and Cooperating, in Intellectual Property and Human Rights, supra note 3, at 133; Reports

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draws on Helfer’s seminal analysis of the interface between human rights and IP rights.38 According to Helfer, the evolution of international law treaties at the beginning of the millennium disclosed two distinct approaches premised on “radically” distinct normative foundations of IP rights as either coexisting or in conflict with human rights.39 The “co-existence” view claims that the paradox and conflict between IP rights and human rights, is only apparent.40 Some argue that the conflict is illusory because IP rights, or some aspects of them,41 are fundamental human rights too, albeit of “weaker” weight than other rights.42 Others suggest that the normative content of the obligations prescribed by human rights instruments are so open-ended and general as to say very little on the impact of IP rights on the realization of other rights.43 By contrast, the “conflict” view argues that IP rights are not fundamental human rights but instrumental legal tools to further social and economic purposes.44 However, the so-called conflict view might arguably be more accurately described as the “primacy of human rights” view 45 on the grounds that the consistent articulation of this view across a number of official reports and comments from different UN organizations in the past decade does not strictly maintain that IP rights cannot co-exist with human rights, but rather that whatever balance is struck between private and public interests in IP, “the primary objective and obligation of States is to promote and protect human rights.”46 As Helfer himself notes, many of the documents and re

38. 39. 40. 41.

42.

43. 44. 45. 46.

of the High Commissioner on the Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the Secretary-General, adopted 14 June 2001, U.N. ECOSOC, Comm’n on Hum. Rts., 52nd Sess., U.N. Doc. E/CN.4/ Sub.2/2001/12, ¶¶ 10–15, 27–58 (2001) [hereinafter Impact of TRIPS]; The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the High Commissioner, supra note 15; UDHR, supra note 1; ICESCR, supra note 1. Helfer, Conflict or Coexistence, supra note 37. Id. at 48. Id. at 47, 51–57. See, e.g., Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, supra note 37, arguing that Articles 27(2) and 15(c) reflect the existence of a fundamental human right “to the protection of interests in intellectual creations” as a “fundamental, inalienable and universal” entitlement. Id.; UDHR, supra note 1, ¶ 2; ICESCR, supra note 1, ¶ c. Several scholars have put forward more nuanced versions of this argument, arguing that intellectual property protections consist of both elements required by human rights, as well as some elements not grounded in human rights. See Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, supra note 37; Chapman, supra note 2, at 19–20. Derclaye, supra note 37, at 133, 160. Helfer, Conflict or Coexistence, supra note 37, at 47, 51–57. Impact of TRIPS, supra note 37; The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the High Commissioner, supra note 15. Impact of TRIPS, supra note 37, ¶ 13.

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ports, while sharply critiquing TRIPS, also identify shared goals and points of communality between the two regimes and seek to articulate a human rights approach to TRIPS that reconciles states treaty obligations.47 A closer look at the claimed contrast between the co-existence and conflict views discloses a spectrum of different and overlapping claims on the rationale, status, and relative weight of IP laws and human rights laws. International organizations argue that the legal modalities of IP rights must be developed under the umbrella of the higher-order legal norms contained in international treaties for the protection of fundamental human rights that, they maintain, have primacy over multilateral trade laws.48 By contrast, human rights skeptics see the “rhetoric” of human rights as a barrier to the development of IP laws, and patent laws to advance economic and social welfare. Rochelle Cooper Dreyfuss argues that the conceptual framework of patent law already internally contains the structural elements needed to limit, control, and achieve the utilitarian goal of enhancing public benefits through patent protection.49 She suggests that human rights discourse polarizes debate between developing and developed economies and obscures a communality of interests between the Global North and South in tackling the adverse effects of the expansion of patentable subject matter in genetics through internal restrictions on entitlement rules and through adjustment of liability and licensing rules. Helfer’s “third way,” explores the possibility that enhanced protection of IP rights may help advance the realization of human rights.50 He cites the example of bilateral or multilateral licensing agreements cutting the price of an essential medicine for developing countries, but still protecting the rights of patent holders by preventing distribution and access of discounted medicines in developed economies.51 Helfer’s suggestion leaves unclear the question of whether IP rights may be conceptualized as fundamental human rights. Lea Shaver, claiming to align her work to Helfer’s third way, proposes a “fourth way” involving a radical re-interpretation of the private rights elements of Articles 27 and 15 to show that they do not correspond to IP rights but are subsidiary to the overriding and primary rights of access to knowledge as a public good.52 Thus, questions about the normative 47. Helfer, Conflict and Coexistence, supra note 37, at 56. 48. As required by the Vienna Convention, which declares that “human rights are the first responsibility of Governments.” Vienna Convention on the Law of Treaties, art. 1, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered into force 27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969). 49. Rochelle Cooper Dreyfuss, Patents and Human Rights: Where is the Paradox?, in Intellectual Property and Human Rights: A Paradox 72 (Willem Grosheide ed., 2009). 50. Helfer, Towards a Human Rights Framework for Intellectual Property, supra note 3, at 971. 51. Id. at 1019. 52. Lea Shaver, The Right to Science and Culture, Wis. L. Rev. 121 (2010).

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coherence, conceptual structure, and principled basis of human rights and IP rights remain a deeply contested locus of debate today.53 The remainder of this article seeks to cast a new light on the foundational questions beleaguering this field and an analysis of the philosophical ideologies and legal cultures of IP rights and patents through the juxtaposition of individual rights to the protection of intellectual creations in an article concerned with public rights of access to science in the text of the UDHR.54 The remainder of this article revisits the original archived UN documentation on the history of the drafting of Article 27 and argues that the paradoxical compromise may be elucidated by reference to the underlying contrasting ideological perspectives on human rights and legal cultures of IP rights and patents. Sections III and IV set out the theoretical and cultural contexts for the analysis of the historical sources on the drafting of Article 27 discussed in Section V. B. Philosophical Foundations of Human Rights The occurrence of the same word “rights” in connection with IP and human rights belies a degree of conceptual closeness between two underlying and opposing conceptions of rights, which is obscured in the wording of the texts of Articles 27 and 15, but is crucial to understanding the paradoxical juxtaposition of public and private rights in both articles. The arguments which were canvassed by the drafters of the UDHR on the inclusion of Article 27(2) reflect an important divide in Western philosophy, between advocates of the classical, natural law grounded Lockean conception of human rights and the positivist critique that took off in the nineteenth century.55 According to the “classical enlightenment” view, the concept of human rights has three essential elements: rights are natural or inherent in human beings, simply because of their status as human beings; rights are possessed equally by all human beings; and rights are universal, they hold everywhere.56 John Locke’s ideas of the natural and inalienable nature of human rights found their expression in the landmark constitutions of France and the US in the eighteenth century. In his “The Second Treatise: An Essay Concerning the True Original, Extent, and End of Civil Government,” Locke stated:

53. See Thomas W. Pogge, Human Rights and Global Health: A Research Program, 36 Metaphilosophy 182, 184–94, 197 (2005); Helfer, Regime Shifting, supra note 8, at 14–15; Shaver, supra note 52. 54. UDHR, supra note 1. 55. Id. ¶ 2. 56. Jack Donnelly, Universal Human Rights in Theory and Practice (2d ed. 2002).

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Man being born, as has been proved, with a title to perfect freedom, and an uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men.57

Likewise, the French Declaration, entitled the Declaration of the Rights of Man, sets forth “in a solemn declaration the natural, unalienable, and sacred rights of man.”58 Furthermore, the idea that every human being was born with certain natural rights which are inalienable carried the implication that human rights laid the foundation for the exercise of power by government and the legislature and that no authority could take these rights away.59 Natural law was conceived of as antecedent to positive law. Human rights had primacy over legal rights. The natural rights theory came under sustained attack in the nineteenth century from two different theoretical perspectives: positivism and Marxism. The positivist critique was led by Jeremy Bentham and epitomized in Bentham’s caustic claim that “natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.”60 Accordingly, Bentham contended that there are “no such things as rights anterior to the establishment of government.”61 Substantive, “real” rights, Bentham thought, were the child of law. The source of legal rights and their meaning could be known.62 By contrast, Bentham thought that the source and meaning of natural rights could not be known, they were products of the imagination, “imaginary laws . . . fancied and invented by poets, rhetoricians, and dealers of moral and intellectual poisons, come imaginary rights,

57. John Locke, Two Treatises of Government and a Letter Concerning Toleration 136 (Ian Shapiro ed., 2003) (emphasis added). The constitutional impact of Locke’s ideas is evident, inter alia, in the opening words of the US Declaration of Independence of 1776: “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” The Declaration of Independence, ¶ 2 (U.S. 1776); see also J.P. Sommerville, John Locke’s Theories Put into Practice, Hist. Dep’t U. Wis., available at http://faculty.history.wisc.edu/sommerville/367/locke%20decindep.htm. Similarly, the Virginia Declaration of Rights of 12 June 1776, proclaimed that all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The Virginia Declaration of Rights § 1 (1776), available at http://www.archives.gov/exhibits/ charters/virginia_declaration_of_rights.html. 58. Declaration of the Rights of Man, pmbl. (1789), available at http://avalon.law.yale. edu/18th_century/rightsof.asp. 59. See id. 60. Jeremy Bentham, Anarchical Fallacies, reprinted in “Nonsense Upon Stilts:” Bentham, Burke, and Marx on the Rights of Man 53 (Jeremy Waldron ed., 1987). 61. Id. at 52, ¶ 6. 62. Id.

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a bastard brood of monsters, ‘gorgons and chimeras dire.’”63 Moreover, the positivist critique of natural rights in Bentham’s writings was coupled with an instrumental, utilitarian philosophy of law. The aim of real legal rights was to promote utility, social welfare, and the “greatest happiness of the greatest number.”64 Quite logically, for Benthamites, (private) legal, property rights of exclusion and legal monopolies, such as those embodied in patent laws, were justified only insofar as they advanced economic and social welfare. The positivist Benthamite critique of natural rights as nonsense upon stilts was extended to patents when Robert Andrew Macfie declared that “to talk of the ‘natural rights’ of an inventor is to talk nonsense.”65 Liberal market theory completed the triangular alliance of the positivist philosophy of rights with the utilitarian rationale for patent laws. Patents were praised by Adam Smith as the only harmless monopolies, because it was the market, rather than government, that determined the inventor’s compensation: “[f]or here, if the invention be good and such as is profitable to mankind, he will probably make a fortune by it; but if it be of no value he also will reap no benefit.”66 A very different, but equally damning critique of natural rights theories was articulated by Karl Marx.67 According to Marx, “the rights of man are not a gift of nature or a legacy of previous history.”68 Natural human rights are philosophical abstractions which form part of the dominant ideology of capitalism and obscure the oppression and exploitation of one class by another.69 The so-called “universal” rights of man contained in the Enlightenment Declarations of France and the US, are in reality formal and abstract formulations concealing an ideology which privileges the pursuit of egoist, self-seeking individuals separated from others and the community. The various liberties and freedoms proclaimed in human rights declarations are based

63. Id. at 69, ¶ 1. 64. Jeremy Bentham, Article on Utilitarianism: Long Version Marginals, in Deontology: Together With a Table of the Springs of Action; and the Article on Utilitarianism 309 (Amnon Goldworth ed., 1983). In Article 83, Bentham distinguishes between morals and politics, in which he includes legislation and international law. He confines the role of morality to what “ought to be done by man when acting on the small, individual scale” by contrast to politics, “the doctrine of what ought to be done by him when acting on an enlarged, a national and international scale.” Id. at 318. 65. Robert Andrew Macfie, Article IV—The Patent Laws, in The Westminster Review 156 (1864); cited in Adam Mossoff, Who Cares What Jefferson Thought about Patents? Reevaluating the Patent “Privilege” in Historical Context, 92 Cornell L. Rev. 953 (2006–2007). 66. The origins of the infamous comment goes back to Coke. The views summarized here draw on Bracha’s masterly historical analysis. Oren Bracha, The Commodification of Patents 1600–1836: How Patents Became Rights and Why We Should Care, 38 Loy. L. A. L. Rev. 177, 208 (2004–2005), citing Adam Smith, Lectures on Jurisprudence 83 (R.L. Meek et al. eds., 1978). 67. Karl Marx, On the Jewish Question, in Karl Marx Selected Writings (David McLellan ed., 2000). 68. Id. at 58. 69. Id.

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on an atomistic view of society where individuals are separated from each other in the pursuit of private interests. Thus, according to Marx, the right to property is “the right to enjoy and dispose of one’s resources as one wills, without regard for other men and independently of society: the right of selfinterest.”70 The abolition of the right to property in communist society, Marx argues, will bring about an end to exploitation of one man by another and the alienation arising from an individual’s work being owned by another. Marx conceived of labor or work as an objectification or “working-up” of the individuals’ conscious capacities and as a life-affirming practical activity.71 In tearing away from man the object of his production, capitalist, rights-based modes of production tear from man his own body and spiritual essence as a human being. Marx thought that, unlike other animals who build nests or dwellings purely to satisfy a physical need, man “also forms things in accordance with the laws of beauty . . . duplicates himself not only, as in consciousness, intellectually, but also actively, in reality, and therefore he contemplates himself in a world that he has created.”72 By contrast to the exploitative labor relations of capitalist societies that legitimate the pursuit of individual egotistic interests under the smokescreen of empty and fictitious universal rights to liberty and property, in communist society, work will be a means to promote and enrich both the individual and society. C. Legal Cultures of Patents and IP Rights The contrasting undercurrents in eighteenth and nineteenth century philosophies of human rights were reflected in the ideologies that shaped the history of IP law and patent law in England, the US, and France.73 In England and the US, the growth of patent rights as positive legal rights was primarily driven by economic and social goals allied to the market oriented political ideologies of the industrial revolution. 74 By contrast, copyright law in France was grounded in the competing ideology that property rights are “pre-political,” natural rights.75 Scholarly research, legislative instruments, and judicial dicta all converge to indicate that patent rights in the UK and US developed as a species of legal rights believed to create “odious monopolies”76 that were monopolies 70. Id. at 60. 71. Karl Marx, Economic and Philosophical Manuscripts, in Karl Marx: Selected Writings 91 (David McLellan ed., 2000). 72. Id. 73. See Brad Sherman & Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760–1911, at 65 (1999). 74. Christopher May & Susan K. Sell, Intellectual Property Rights: A Critical History 122 (2006). 75. Sherman & Bently, supra note 73. 76. Edward C. Walterscheid, The Early Evolution of the United States Patent Law: Antecedents (Part 2) 76 J. Pat. & Trademark Off. Soc’y 849, 849–50, 852–55 (1994).

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granted and tolerated for the greater good of facilitating economic, social, or political goals.77 At first, patent rights were personal privileges granted by the Crown to a petitioner in “letters patent”78 in return for bringing certain public benefits to the realm.79 Benefits might include decreasing unemployment, introducing new crafts and skills into the realm such as glass or iron-working, making “sulphur, brimstone and oils,” a mill to grind corn, or supplying a cheaper product such as charcoal.80 Concerns over misuses of the royal prerogative and the grant of “bad monopolies” that were prejudicial to the public good led to the adoption of the Statute of Monopolies in 1623, limiting the powers of the Crown to ensure that only “[p]atents are Lawful which are not ad Damnum Populi.”81 The effect of the Statute of Monopolies was to transfer the power of granting patents, previously exercised by the Crown, to separate government officials under the oversight of the legislature and the courts.82 Over the eighteenth and nineteenth centuries, the institutional structure of the modern patent system slowly began to crystallize as courts developed a uniform set of legal rules and standards.83 At the same time, new ideological differences over the justification of patent rights emerged reflecting the multi-faceted dimensions of liberal, enlightenment philosophies of human rights and the utilitarian and positivist critiques. Those claiming that patents were natural property rights often seemed prompted by political, libertarian motives to challenge the royal prerogative and patent-privileges framework.84 In England, the positivist view of patents as limited legal rights whose purpose was to promote public wealth became widespread amongst theorists, practitioners, and judges alike in the nineteenth century. Judges expressly rejected the Lockean conception of a natural right of inventors, arguing “the mere labor and study of the inventor, how intense and ingenious so-ever it may be, will establish no property in the invention.”85 Patent attorneys concurred that “[t]hose who believe the inventor to have a natural right . . . must have an entire misconception as what it is the inventor really achieves.”86 And in 1864, the Westminster Review extended the positivist Benthamite critique

77. See George Ramsey, The Historical Background of Patents, 18 J. Pat. Off. Soc’y 6, 6–9 (1936), cited in Bracha, supra note 66, at 185. 78. William Blackstone, Commentaries on the Laws of England 346 (1766). 79. Walterscheid, supra note 76, at 855. 80. Bracha, supra note 66, at 186. In pursuit of this policy, Queen Elizabeth granted a total of fifty-five monopolies between 1561 and 1603—twenty-one of which went to foreigners. 81. Id. at 193. 82. Privilege and Property: Essays on the History of Copyright (Ronan Deazley, Martin Kretschmer & Lionel Bently eds., 2010). 83. Bracha, supra note 66, at 205. 84. Id. at 207. For a competing view, see Mossoff, supra note 65. 85. Mossoff, supra note 65. 86. Id.

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of natural rights declaring that “to talk of the natural rights of an inventor is to talk nonsense.”87 The privileges framework and practices of the administration and grant of patents in England spread to the colonies. In the US, IP rights were entrenched in the Constitution with the adoption of a clause that gave Congress the power to “promote the Progress of Sciences and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”88 Since then, judges of the US Supreme Court have consistently aligned their judgments to the positivist, economic rationale of patent rights as limited rights, encapsulated in the oft-quoted comment of Thomas Jefferson that: the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.”89 Jefferson’s views are still being relied upon by the US Supreme Court today, most recently in the landmark cases of Graham v. John Deere Co.90 and Eldred v. Ashcroft.91 In Eldred, Justice Ruth Bader Ginsburg, writing for the majority, said: The economic philosophy behind the [Copyright] [C]lause . . . is the Conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors. Mazer v. Stein, 347 U. S. 201, 219 (1954). Accordingly, copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge. . . . The profit motive is the engine that ensures the progress of science. American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff.d, 60 F. 3d 913 (CA2 1994).92

By contrast, in France and in the rest of Europe, the ideological construct underpinning IP rights, and copyright law in particular, was the classical, Lockean conception of property rights as fundamental natural rights.93 According to the Lockean conception, it is the labor or work that an individual has invested into the creation of a thing, which confers on the individual a natural entitlement or right to ownership and use of the thing: “the Labour of his Body, and the Work of his Hands, we may say, are properly his.”94 From 87. Macfie, supra note 65. 88. U.S. Const. art. I, s 8, cl. 8. 89. Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 13 The Writings of Thomas Jefferson 326, 334–35 (Albert Ellery Bergh ed., 1907). 90. Graham v. John Deere Co. of Kansas Cty., 383 U.S. 1, 7–11 (1966). 91. Eldred v. Ashcroft, 537 U.S. 186 (2003). 92 Id. at n.18, citing Mazer v. Stein, 347 U.S. 201, 219; American Geophysical Union v. Texaco Ind., 802 F.Supp 1, 27 (S.D.N.Y. 1992), aff’d, 60 F. 3d 913 (C.A.2 1994). 93. Privilege and Property, supra note 82. 94. John Locke, Of Civil Government: Second Essay, at ch. 5 (1947). Although Locke did not think that his labor theory of right justified ownership only when “there is enough, and as good left in common for others.” Id. ¶ 27. See also id. ¶¶ 22, 33.

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Locke’s argument, as noted by many scholars, it follows that individuals are entitled to property rights in the finished products of intellectual labor such as a novel, poem, or musical composition.95 The Lockean “labor” theory of property rights thus provides a compelling moral rationale for the view that authors and inventors are deserving of, indeed entitled to, the legal protection of their “moral and material” interests as a matter of right.96 The theory also provided the driving impetus for the development of copyright law in France in the nineteenth and twentieth centuries; although historians concur that the theory was a romanticized halo obscuring the real economic and social forces behind copyright laws. The idea that artistic and literary works are intensely creative and personal in character and the interests of their authors deserving of legal recognition was in reality invoked by printers and publishers in France during the nineteenth and twentieth centuries to press for legal protection of their economic interests.97 Thus, the Enlightenment philosophies of human rights had two important dimensions that became disaggregated in subsequent debates on the theoretical foundations of human rights and in the evolution of human rights instruments in the nineteenth and twentieth centuries. On the one hand, the classical Enlightenment view was that fundamental human rights are universal natural rights. On the other hand, the liberal challenge to the authority of the Crown and state implicit in natural law theories was reflected in the list of human rights enumerated in the classical eighteenth century instruments and constitutions, typically confined to “negative” political rights and civil liberties or freedoms from oppression and interference by the state.98 The positivist critique of natural human rights could potentially be bolted onto the liberal arm of Enlightenment philosophies as long as the enumerated rights were clearly acknowledged to be positive, legal rights and, in the view of utilitarians, motivated and ultimately limited by the public good, as exemplified in English patent law. Article 27 provides an illustration of how the underlying ideological tensions resolved themselves in the political compromise and instability created by the juxtaposition of two different provisions with different goals.99 As will be seen, the reasons articulated by socialist and liberal countries in the debates over the inclusion of private rights to the protection of intellectual creations in an article primarily concerned 95. See, e.g., Richard A. Spinello & Maria Bottis, A Defense of Intellectual Property Rights 156 (2009). 96. ICESCR, supra note 1. 97. See Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of “Authorship,” 1991 Duke L.J. 455, 456 (1991). Sherman and Bently show how conceptions of “creativity” alongside other traditions influenced English law. Sherman & Bently, supra note 73, at 84. 98. Sandra Fredman, Human Rights Transformed: Postive Rights and Positive Duties (2008); see generally Isaiah Berlin, Two Concepts of Liberty, reprinted in Four Essays on Liberty (1969). 99. UDHR, supra note 1.

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with a public right of access to science, reflect the different philosophies of human rights and IP rights discussed above.100 iii. Drafting History of Article 27 The right to share in the benefits of science proclaimed in Article 27 is one of a number of social, cultural, and economic rights, which were included in the UDHR alongside the more traditional political and civil rights contained in classical texts from the Enlightenment.101 The rights listed in the UDHR can be grouped under two headings. The first half of the UDHR comprises the classical “Enlightenment” rights, which include the right to life, liberty, and security of the person102; freedom of thought and religion103; freedom of expression104; and right to property.105 The second half, starting with Article 22,106 comprises novel individual social, cultural, and economic rights, including the right to work,107 right to rest and leisure,108 right to health,109 right to education,110 and right to share in scientific advancement and its benefits and protection of rights of authors.111 In his seminal reconstruction of the history of the UDHR, Johannes Morsink reveals how the inspiration for the inclusion of socioeconomic and cultural rights came from the constitutions of socialist South American states and Pan-American regional human rights instruments.112 John Humphreys, who prepared the preliminary draft text for the International Bill of Rights, had worked with human rights texts prepared by the American Law Institute (which Panama had introduced in San Francisco) and had borrowed freely from these texts as well as the Inter-American Juridical Committee when drafting the list of socioeconomic and cultural rights.113 In this light, it is somewhat baffling to discover that the insertion of Article 27(2) was not the result of an oversight.114 Not only 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112.

Id. Id. Id. art. 3. Id. art. 18. Id. art. 19. Id. art. 17. Id. art. 22. Id. art. 23. Id. art. 24. Id. art. 25. Id. art. 26. Id. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999). 113. Id. at 6. John P. Humphrey, a Canadian lawyer, was the Director of the Secretariat’s Division on Human Rights. 114. As pondered by some commentators, viz. Chapman, supra note 2; UDHR, supra note 1, ¶ 2.

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were the drafters aware of the potential tension created by the juxtaposition of public and private rights,115 but furthermore, the historical record also shows that the inclusion of rights to the protection of individual moral and material interests in Article 27(2) occurred at the insistence of a number of socialist countries and against persistent objections of delegates from liberal market oriented states.116 The next section argues that the deeper ideological rift behind the paradoxical political alignment for and against Article 27(2) is manifested in the historical record in three ways.117 First, the general consensus over the inclusion of socioeconomic rights in a Declaration as opposed to a legally binding Covenant obscures the stark divisions that erupted at the time between delegates from England and Anglo-Saxon former colonies and French and South American countries on the normative content, principled basis, and legal reach of a human rights instrument. Second, the superficially paradoxical opposition of Anglo-Saxon countries, liberal economies, and market economies to the inclusion of a right protecting the moral and material interests of individuals is rooted in a deeper historical opposition to the idea of natural rights and patent rights in Anglo-Saxon legal cultures. And third, the political alliance between French and (some) socialist countries for the inclusion of individual rights belies deeper differences about the nature and function of human rights in political society. iv. Socioeconomic and Cultural Rights The task of preparing a report and recommendations regarding an “international bill of rights” fell on the Commission on Human Rights, which was established by the United Nations Economic and Social Council (ECOSOC) in January 1946.118 The Commission held its first meeting at Lake Success, 115. As noted by William A. Schabas, Study of the Right to Enjoy the Benefits of Scientific and Technological Progress, in Human Rights in Education, Science and Culture: Legal Developments and Challenges 273, 290 (Yvonne Donders & Vladimir Volodin eds., 2007). 116. See Davinia Ovett, Intellectual Property and Human Rights: Is the Distinction Clear Now? An Assessment of the Committee on Economic, Social and Cultural Rights, General Comment No. 17, Policy Brief 3, 2 (Oct. 2006) (pointing to a more complex dynamic than suggested by some commentators); UDHR, supra note 1, ¶ 2. The right to the protection of moral and material interests of authors was repeatedly rejected from the article on “cultural rights,” during the drafting of the international covenants on human rights in the 1950s. This was due to concerns of socialist countries at the time, that this article would be protecting an individual author’s rights in opposition to the rights of the community. 117. UDHR, supra note 1, ¶ 2. 118. ESCOR Resolution 5 (I) (16 Feb. 1946) established Commission on Human Rights in “nuclear” form and in Economic and Social Council resolution 9 (II) (21 June 1946) the Commission on Human Rights was set up as a full commission. The New Human Rights Council: The First Two Years, Workshop Organized by the European University Institute n.14 (Villa Schifanoia, La Cappella) (7–8 Nov. 2007), available at

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New York, from January to February 1947.119 The US delegate, Eleanor Roosevelt, was elected Chair of the Commission. A politically and religiously diverse drafting committee was set up comprising eight members representing a plurality of political and religious outlooks, including Australia, Chile, China, France, Lebanon, the USSR, the UK, and the US. The members of the Commission included, in addition, members from, Belgium, Byelorussian Soviet Socialist Republic, Egypt, India, Iran, Lebanon, Panama, Philippine Republic, Uruguay, and Yugoslavia.120 A preliminary draft of the Bill of Rights,121 prepared by Humphrey,122 was a long umbrella document containing forty-eight articles embracing classical political and civil rights in addition to novel social, cultural, and economic rights.123 At the First Session of the Commission on Human Rights, the question arose whether the Bill should take the form of a binding covenant, whereby the rights contained therein would impose legally binding obligations on member states.124 The UK delegate made it very clear that

119. 120.

121.

122.

http://www.eui.eu/Documents/DepartmentsCentres/AcademyofEuropeanLaw/Projects/ HRCReport.pdf; see also United Nations Documentation: Research Guide, Commission on Human Rights (1946–2006), U.N. Dag Hammarskjöld Libr., available at http://www. un.org/Depts/dhl/resguide/spechr.htm#commission; Implementation of General Assembly Resolution 60/251, Minn. Hum. Rts. Libr., available at http://www1.umn.edu/humanrts/ GAres60-251.html. Report to the Economic and Social Council on the First Session of the Commission, U.N. ESCOR, Comm’n on Hum. Rts., 4th Sess., U.N. Doc. E/259(SUPP) (1947). Modern scholars have noted that the diversity and plurality of inputs into the process of drafting the text ultimately helped lend weight to the UDHR’s claim to universality and helped secure its legitimacy when the Declaration was adopted by the United Nations Third General Assembly two years later on 10 December 1948. Note that expression “Bills of Rights” is ambiguous as to the legal status of the rights. Bills of rights had previously consisted of lists of rights typically, but not necessarily, imposing legal obligations on governments. The source of the legal obligations imposed on the state in such bills would usually lie in the fiction that the bills were binding pacts or covenants between governments or rulers and the people. Legal obligation would be secured through entrenchment of the bill in national constitutions. See Promoting Human Rights Through Bills of Rights: Comparative Perspectives 484 (Philip Alston ed., 1999). The list of rights detailed in the preliminary draft bill “contained no statement of the philosophy on which the document was based because,” John Humphrey said when pressed: [T]his document had not been based on any philosophy . . . . (Instead) the Secretariat had attempted to include all the rights mentioned in various national Constitutions and in various suggestions for an International Bill of Human Rights.

Summary Record of the First Meeting, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., 1st Sess., at 5, U.N. Doc. E/CN.4/AC.1/SR.1 (1947). The extensive list of rights enumerated in the preliminary draft, encompassed both traditional civil and political rights as well as social, economic and cultural rights, including the right of everyone “to participate in the cultural life of the community, to enjoy the arts and to share in the benefits of science.” Documented Outline Part I – Texts, Drafting Committee: International Bill of Rights, U.N. ESCOR, Comm’n on Hum. Rts., at 356, art. 44, U.N. Doc. E/CN.4/AC.1/3/Add.1 (1947). 123. Documented Outline Part I – Texts, supra note 122. 124. Summary Record of the Second Meeting, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., 1st Sess., at 3 ff, U.N. Doc. E/CN.4/AC.1/SR.2 (1947); Summary Record

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in his opinion “only those things which are enforceable in the near future” should be included in a legally enforceable bill as opposed to a declaration or manifesto,125 which would have only persuasive moral rather than legal force.126 The issue was forced by the UK’s submission of an “International Bill of Human Rights”127 as an alternative to that prepared by the Secretariat’s preliminary draft bill.128 Unlike the Secretariat’s preliminary text, which enumerated and described an extended and mixed list of forty-eight political, civil, and socioeconomic rights,129 the UK proposal contained only a short list of fundamental rights and freedoms.130 Notably, the UK text included the right to life,131 prohibition of slavery,132 right to fair detention and trial,133 right to freedom of religion,134 right of freedom of expression,135 and right to peaceful assembly.136 The UK proposal also included procedures for implementing these rights.137 At the second session, the division between

125. 126. 127. 128.

129. 130. 131. 132. 133. 134. 135. 136. 137.

of the Seventh Meeting, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., 1st Sess., U.N. Doc. E/CN.4/SR.7 (1947); Summary of the Ninth Meeting, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., 1st Sess., U.N. Doc. E/CN.4/SR.9 (1947); Summary of the Tenth Meeting, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., 1st Sess., U.N. Doc. E/CN.4/SR.10 (1947). See also note on the UN website, commenting on the first session, that: Among the Commission members, views differed whether it was of greater importance to draft a legal instrument with a strong enforcement component, or an international bill of rights that would act as a standard setting document for human rights. This issue persisted throughout the drafting process and the Commission continued to work towards both goals simultaneously. The Universal Declaration of Human Rights: An Historical Record of the Drafting Process: 1947 Commission on Human Rights, available at http://www.un.org/depts/dhl/ udhr/meetings_1947_1st_chr.shtml. Summary Record of the Second Meeting, supra note 124, at 5. Summary Record of the Seventh Meeting, supra note 124; Summary Record of the Ninth Meeting, supra note 124; Summary Record of the Tenth Meeting, supra note 124. Text of Letter from Lord Dukeston, the United Kingdom Representative on the Human Rights Commission, to the Secretary-General of the United Nations, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., U.N. Doc. E/CN.4/AC.1/4 (1947). Compare Article 9’s “inclusive” statement of socioeconomic and cultural rights in the US proposal for a Bill, omitted in the counterpart Covenant. Parallel Passages in Human Rights Drafting Committee Text and United States Proposal, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/36/Add.2 (1947); Proposal for a Human Rights Convention Submitted by the Representative of the United States on the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 2d Sess., U.N. Doc. E/CN.4/37 (1947). Draft Outline of International Bill of Rights, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., U.N. Doc. E/CN.4/AC.1/3 (1947). A document prepared by the secretariat set up the secretariat’s text and the UK’s side by side. United Kingdom Draft International Bill of Human Rights, Drafting Committee, U.N. ESCOR, Comm’n on Hum. Rts., U.N. Doc. E/CN.4/AC.l/3/Add.3 (1947). Id. art. 8. Id. art. 9. Id. art. 10. Id. art. 13. Id. art. 14. Id. arts. 15, 16. Id. art. 2, 3, 6.

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proponents of a Declaration and proponents of a Convention widened.138 The US delegation proposed that priority should be given to the drafting of a Declaration139 and that the Declaration “should not be drawn up in such a way as to give the impression that Governments would have a contractual obligation to guarantee human rights.”140 The UK delegate disagreed, describing a declaration as “nothing more than a document of propaganda.”141 The UK delegation thought that it was “dangerous to prepare a draft Declaration without a draft Convention,”142 as the result may have become a hybrid document that would be neither a convention nor a declaration.143 History showed that, “Declarations imposing no juridical obligations had remained inoperative for centuries.”144 The Australian delegate agreed, pointing that the commission’s task was to “draft a Bill of Human Rights, not a Declaration which, he felt, entailed no legal obligations and would not in any way affect the lives of men and women unless translated into concrete action.”145 India concurred in rejecting a mere declaration or “a vague resolution including mystic and psychological principles.”146 A proposal put forward by the UK that the Commission should “proceed immediately to the preparation of a draft Bill of Human Rights, the terms of which will be binding on the States ratifying it,”147 was never adopted. Instead, a compromise was adopted that would divide the drafting process between three working parties.148 The first working party would work on the Declaration.149 The other two working parties would work on a draft covenant and implementation measures

138. Summary Record of Twenty-Fifth Meeting, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/SR.25 (1947). 139. Id. at 2, 10. 140. Id. at 10. 141. Id. at 11. 142. Id. 143. Id. 144. Summary Record of the Twenty-Eighth Meeting, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., at 7, U.N. Doc. E/CN.4/SR/28 (1947). 145. Summary Record of the Twenty-Seventh Meeting, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., at 5, U.N. Doc. E/CN.4/SR/27 (1947). 146. Hansa Metha, Indian delegate. Summary of Record of the Fifteenth Meeting, U.N. ESCOR, Comm’n on Hum. Rts., at 2, U.N. Doc. E/CN.4/SR.15 (1947). 147. Revised Proposal [for a Decision to Prepare a Draft Bill and Declaration of Human Rights] submitted by the United Kingdom Delegation, U.N. ESCOR, Comm’n on Hum. Rts., U.N. Doc. E/CN.4/42/REV.1 (1947). 148. Resolution Adopted [for a Decision to Proceed Without Delay to Consider the Draft Declaration on Human Rights Contained in Annex F and the Draft Articles Contained in Annex G of the Report of the Drafting Committee for Inclusion in a Convention], U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/50 (1947). 149. Report of the Working Group on the Declaration on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/57 (1947); Addendum to the Report of the Working Group on the Declaration, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/57/Add.1 (1947).

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respectively.150 This division of labor had a profound influence on the substantive content of the final document that was recommended and adopted by the UN General Assembly. Importantly, it was agreed by those who favored the Convention or Covenant format that the General Assembly, in recommending a Convention to member states “might make a Declaration wider in content and more general in expression.”151 The original forty-eight articles of the preliminary draft prepared by Humphreys were dramatically cut down to twenty-eight by the time the final draft text of the Universal Declaration of Human Rights was presented to the UN General Assembly.152 But, as Morsink notes, there was no significant resistance to or any fundamental disagreement over the inclusion (and retention) of the original social, cultural, and economic rights which had been included in the first draft Bill alongside the more traditional “classical” civil and political rights.153 A US proposal to collapse the list of social and economic rights into one article declaring: “Everyone has the right to a decent living; to work and advance his well-being to health, education and social security. There shall be equal opportunity for all to participate in the economic and cultural life of the community,” was not taken up.154 The US Delegate submitted that the proposed Article 9 was an inclusive statement on social rights, and includes items in the HRDC Articles 29, 30, 31, 33, 34 35, 36. HRDC Article 32, on the right to a fair share of rest and leisure, is not specifically included, but is suggested by the addition of the phrase “advance his wellbeing,” and in the adjective “decent” describing “living.” Both of these phrases accentuate the right to good conditions of work and life. HRDC Article 28, on the right of citizens to public employment and public office, and HRDC Article 16, on the right to engage in all vocations and professions, are not specifically included, but are implied in the right of everyone to work.155

In the end, the adoption of a human rights document in the form of a Declaration that carried no legal obligations facilitated a consensus between delegates over the inclusion of a broad spectrum of rights not traditionally

150. Report of the Working Party on an International Convention on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/56 (1947); Draft of the Working Group on Implementation, U.N. ESCOR, Comm’n Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/53 (1947). 151. Report of Drafting Committee to the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 1st. Sess., U.N. Doc. E/CN.4/21 (1947). 152. Report of the Third Session of the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., at 10 ff, U.N. Doc. E/800 (1948). 153. Morsink, supra note 112, at 223. 154. Explanatory Note on Derivation of Declaration on Human Rights, Proposed by Representative of the United States on the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/36/ADD.1 (1947). 155. Id.

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present in the legally binding Covenants of the Enlightenment, including the right to access the benefits of science and individual rights of authorship. Although the Commission envisaged that a Covenant would follow shortly after the Declaration, it took another two decades for agreement to be reached but the outcome was two separate covenants in 1966.156 Crucially, the ICESCR, while formally raising the status of socioeconomic and cultural rights to legally binding rights, nevertheless reflects the earlier deep and enduring divisions over in the choice of loose aspirational language and weak enforcement mechanisms.157 Not surprisingly, unresolved questions regarding the precise nature, scope, and normative content of discrete socioeconomic and cultural rights, notably Article 27, have resurfaced in subsequent debates over the wording of the counterpart text in Article 15.158 A. The Origins of Article 27(2) The text of Article 27 has two subsections dividing the right of everyone to “freely . . . participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits,”159 from “the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”160 The constitutional sources relied upon by Humphreys161 show that the first part of Article 27 (formerly Article 44) matches the first part of Article XV of Chile’s Inter-American Juridical Committee, stating: “everyone has the right to share in the benefits accruing from the discoveries and inventions of science.”162 But the remainder of the original Chilean text was left out of the draft Bill.163 The omitted sections are precisely those that qualify the right in question, stating that everyone has the right to share in the benefits accruing from the discoveries and inventions of science: “under conditions which permit a fair return to the industry and skill of those responsible for the discovery of the invention.”164 An additional paragraph further states that: 156. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR]; ICESCR, supra note 1. 157. As noted by Henry J. Steiner, Philip Alston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals, Text and Materials 263 (3d ed. 2008). 158. Maria Green, Drafting History of the Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights, Background Paper, U.N. ESCOR, 24th Sess., U.N. Doc. E/C.12/2000/15 (2000); general comment no. 17, supra note 18; Right to Enjoy the Benefits of Scientific Progress and its Application, supra note 18; UDHR, supra note 1; ICESCR, supra note 1. 159. UDHR, supra note 1, art. 27, ¶ 1. 160. Id. ¶ 2. 161. Draft Outline of International Bill of Rights, Drafting Committee, supra note 129, at 356. 162. UDHR, supra note 1. 163. Draft Outline of International Bill of Rights, Drafting Committee, supra note 129, at 356. 164. Id.

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[t]he State has the duty to encourage the development of the arts and sciences, but it must see to it that the laws for the protection of trademarks, patents and copyrights are not used for the establishment of monopolies which might prevent all persons from sharing in the benefits of science. It is the duty of the State to protect the citizen against the use of scientific discoveries in a manner to create fear and unrest among the people.165

Thus, from the outset, the Chilean text showed awareness of a potential tension between patent laws, legal rights of authorship, and the interests of inventors and industry in anticipating the possible restrictions on access to science, knowledge, art, and culture created by IP rights.166 But the tensions were not discussed at any length until the very last stages of the draft, possibly due to the Committee’s limited understanding of patent laws.167 The committee’s superficial understanding of patent laws is reflected in a reply from the US Chair, Eleanor Roosevelt, to a remark from the Soviet delegate that, “[S]haring in the benefits of scientific discoveries” seemed to “imply an obligation to reveal the patents of scientific discoveries.”168 The Chair suggested that “it would be possible to insert a comment to the effect that the Article did not imply the obligation to reveal the secret of scientific discoveries that had been patented.”169 In reality, commercial secrecy is incompatible with patent protection and an alternative to it because the legal effect of a patent is to confer on the holder a right to exclude others from using the patented invention in return for publication and disclosure of the invention.170 An additional factor that beleaguered the discussion was the relatively immature state of development of international IP law at the time.171 B. Evolution of the Draft The French delegation and Chair of the working group on the Declaration, René Cassin, had played a prominent role in the international debates that 165. Id. 166. Id. Other constitutional sources included Articles 163 and 164 of the Bolivian Constitution assert the state’s obligation to protect artistic, cultural, and archeological heritage and promote culture. Bol. Const. 30 Oct. 1938, arts. 163, 164. Similarly, the three articles from Brazilian Constitution assert the duty of the state to promote culture through the creation of research institutes and states that “the science, letters and arts” are free. Saudi Arabia Const. 1946, arts. 174, 357. Article 29 of the Saudi Arabian Constitution states that public education comprises diffusion of science, education, and the arts, through libraries, schools, and institutes. Id. art. 29. Article 62 of the Uruguayan Constitution declares free education, including artistic and “industrial” instruction a “social need” and calls for the creation of scholarships for the arts and sciences, as well as libraries. Uru. Const. 1942, art. 62. 167. Summary of the Ninth Meeting, Working Group on the Declaration of Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., at 3–4, U.N. Doc. E/CN.4/AC.2/SR/9 (1947). 168. Id. 169. Id. 170. Lionel Bently & Brad Sherman, Intellectual Property Law (3d ed. 2009). 171. See Morsink, supra note 112.

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were taking place concurrently on the Berne Convention and in the run up to the adoption of the American Declaration of the Rights and Duties of Man (Bogota Declaration) dealing with patents and copyright.172 The discussions surround the Berne Convention and the Bogota Declaration called for recognition of an author or scientist’s “spiritual and moral rights” over use of her work, a right which they insisted was distinct from and survived legal rights.173 In his initial reworking of Humphreys’ draft, Cassin had sought to add a paragraph to this effect,174 but the proposal was rejected by the US and UK. The UK delegate thought that these rights “belonged to the domain of copyrights.”175 Cassin agreed to a suggestion from the US Chair that a footnote be attached stating that the idea might be implemented in a Convention and that international consideration should be given to this suggestion,176 thereby implicitly acknowledging the ambiguous nature of the so-called “moral” rights of authorship. As Morsink notes, however, the French were very persistent on this point177 and with support from a number of South American countries, the persistence paid off in the Third Session which met from 28 May through 18 June 1948 and coincided with the Conference on the Berne International Copyright Convention.178 The French initiative gathered further momentum following the adoption of the Bogota Declaration179 by the Ninth International Conference of American States in Bogota, Colombia, in April 1948.180 Article XIII of the Bogota Declaration proclaimed the right of everyone to participate in the cultural life of the community and the individual right of authors to the protection of their moral and material

172. American Declaration of the Rights and Duties of Man, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., U.N. Doc. E/CN.4/122 (1948). 173. Id. at 219–20. 174. Per the report of Second Session, alternative text was submitted by France: “Authors of creative works and inventors shall retain, apart from financial rights, a moral right over their work or discovery, which shall remain extant after the financial rights have expired.” Id. at 12–13. 175. Id. 176. Id. 177. For instance, on 6 May 1948, the French delegation suggested that Article 30 be replaced by Articles, 25 and 26, as follows: Article 25 Everyone has a Right to Rest and Leisure. Rest and leisure should be ensured to everyone by laws or contracts providing in particular for reasonable limitations on working hours and for periodic vacations with pay. Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in the benefits that result from scientific discoveries. Article 26: Authors of creative works and inventors shall retain, apart from financial rights, a moral right over their work or discovery, which shall remain extant after the financial rights have expired. Report of the Drafting Committee [on an International Bill of Rights] to the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 2nd Sess., U.N. Doc. E/CN.4/95 (1948). 178. Morsink, supra note 112, at 220; see Report of the Third Session, supra note 152. 179. Id. 180. Our History, Organization of American States, available at http://www.oas.org/en/about/ our_history.asp.

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interests over their inventions.181 The inclusion of Article XIII in the American Declaration had been pressed by Mexico, which now saw the UDHR as an opportunity to extend the reach of this provision to the status of a universal right.182 On 16 April 1948, the Mexican delegation put forward a proposal that the following text should be added: “Everyone is likewise entitled to just protection, compatible with the progress of mankind, for his moral and material interests in any inventions or literary, scientific or artistic works of which he is author.”183This was followed by a suggestion from Brazil to include “without prejudice to IP rights” and “without detriment to literary, scientific and artistic property rights.”184 At the Third Session of the Commission on Human Rights, the term “scientific discoveries”185 was replaced by “scientific advancement.”186 France, Cuba, and Mexico continued to press, at that stage still unsuccessfully, for the addition of a paragraph to protect the “moral and material” interests of authors, scientists, and inventors.187 The Soviet Union wanted to add a paragraph stating that: “The development of science must serve the interests of progress and democracy and the cause of international peace and cooperation,”188 but the US, UK, and others opposed this as too political.189 The latent ambiguity as to whether the rights of authors and inventors were a species of economic or social right belonging in Article 25 was further reflected in the text of the draft Covenant, which was remitted to the

181. Right to the benefits of culture: Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries. He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.

American Declaration on the Rights and Duties of Man, supra note 172, art. xiii. 182. Janusz Symonides, Cultural Rights: A Neglected Category of Human Rights, 50 Int’l Soc. Sci. J. 559. 183. Comments from Governments on the Draft International Declaration on Human Rights, Draft International Covenant on Human Rights and the Question of Implementation, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., U.N. Doc. E/CN.4/82/Add.1 (1948); Report of the Commission on Human Rights, Supplement No. 1, U.N. ESCOR, Comm’n on Hum. Rts., 6th Sess., U.N. Doc. E/600(SUPP) (1948). 184. Comments from Governments on the Draft International Declaration on Human Rights, Draft International Covenant on Human Rights and the Question of Implementation, Communication Received from Brazil, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., art. 30, at 7, U.N. Doc. E/CN.4/82/Add.2 (1948). 185. Report of the Drafting Committee to the Commission on Human Rights, supra note 151, art. 35, at 81. 186. Report of the Third Session of the Commission on Human Rights, supra note 152, at 13. 187. Recapitulation of Amendments to Article 25 of the Draft Declaration, Draft International Declaration of Human Rights, U.N. GAOR, 3d Sess., U.N. Doc. A/C.3/302 (1948). 188. Id. 189. Id.; Draft International Declaration on Human Rights, Hundred and Fiftieth Meeting U.N. GAOR, 3d Sess., at 620, 625, U.N. Doc. A/C.3/SR.150 (1948) [hereinafter Hundred and Fiftieth Meeting].

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Economic and Social Council alongside the draft Declaration.190 The draft Covenant, by contrast to the draft Declaration, did not contain any of the economic or social rights.191 Artistic or literary rights were featured in some of the state delegations’ proposed texts relating to the right to freedom of expression.192 The drafting committee could not decide on a final wording and put forward a number of suggestions for limitations on freedom of expression “infringements of literary or artistic rights”193 and “[t]he restrictions imposed by the laws relating to copyright.”194 The draft Declaration and Covenant were submitted to the ECOSOC which held plenary meetings on 25 and 26 August 1948 before the drafts were transmitted to the UN General Assembly for final consideration.195 At the plenary Council meeting on 25 August 1948, Cassin, speaking on behalf of the French delegation, supported the remittal of the Declaration for adoption by the UN General Assembly with reservations because: “The Declaration gave no place to scientific and artistic pioneers, although those who contributed to the advance of civilization were entitled to have their interests protected.”196 Still, with the support of South American delegations at the third plenary meeting of the UN General Assembly on the 20 November 1948,197 the French persistence paid off. A joint submission by France, 190. Commission on Human Rights Report to the Economic and Social Council on the Second Session of the Commission, U.N. ESCOR, Comm’n on Hum. Rts., 6th Sess., at 27–28, U.N. Doc. E/600 (1947). 191. Something deplored by several delegations, including the Soviet Union. Report of the Third Session of the Commission on Human Rights, Two Hundred and Fifteenth Meeting, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., at 659, U.N. Doc. E/SR.215 (1948) [hereinafter Two Hundred and Fifteenth Meeting]. 192. See Report of the Third Session of the Commission on Human Rights, supra note 152, at 29. 193. Proposed by the UN Conference on Freedom of Expression. Id. 194. Proposed by the Union of South Africa. Id. at 31. 195. Report of the Third Session of the Commission of Human Rights, Resolution of 26 August 1948, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., at 15, U.N. Doc. E/1050 (1948); Summary of the Eighty-First Meeting, U.N. ESCOR, Comm’n on Hum. Rts., U.N. Doc. E/CN.4/SR.81 (1948); The report of the third session of the Commission on Human Rights, was submitted to the seventh session of the Economic and Social Council on 28th June 1948. Financial Estimates Presented by the Secretary-General in Accordance with Rule 30 of the Rules of Procedure of the Council, Report of the Third Session of the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., U.N. Doc. E/800/ Add.1 (1948); Financial Estimates Presented by the Secretary-General in Accordance with Rule 30 of the Rules of Procedure of the Council (Paragraphs 20 and 21), Report of the Third Session of the Commission on Human Rights, U.N. ESCOR, Comm’n on Hum. Rts., 8th Sess., U.N. Doc. E/800/Add.2 (1948); Report of the Third Session of the Commission on Human Rights, supra note 152, at 5. The Economic and Social Council submitted the Draft Declaration to the Assembly on 26 Aug. 1948. Resolution 151(VII) of 26 Aug. 1948. Many expressed regret that it had not been possible to complete the draft Covenant and measures for implementation. Two Hundred and Fifteenth Meeting, supra note 191, at 646; Continuation of the Discussion on the Report of the Third Session of the Commission on Human Rights, Two Hundred and Eighteenth Meeting, U.N. ESCOR, Comm’n on Hum. Rts., 3d Sess., at 698, U.N. Doc. E/SR.218 (1948). 196. Two Hundred and Fifteenth Meeting, supra note 191, at 650. 197. Hundred and Fiftieth Meeting, supra note 189, at 622.

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Mexico, and Cuba to add a second paragraph to Article 25 (now Article 27) carried the day: “Everyone has, likewise, the right to the protection of his moral and material interests in any inventions or literary, scientific or artistic works of which he is the author.”198 C. The Drafters’ Rationale for Article 27(2) The amendment submitted by the French and South American delegations199 received the support of eighteen delegations, which constituted a majority, at the Third Session of the UN General Assembly, although thirteen voted against and ten abstained.200 Tellingly, and as an indication of the breadth of opposition and skepticism about the inclusion of the second paragraph, the total number of abstentions and votes against inclusion substantially outnumbered the votes in favor: 23 to 18.201 The uncertainty about the aims and purpose of the second paragraph is further reflected in the absence of clarity and unity of purpose in the speeches of delegates in the majority. Cassin, speaking on behalf of the French delegation, said he agreed with delegates from Mexico and Cuba that the principles of the Bogota Declaration protecting intellectual property rights should be included in a universal declaration of human rights that recognized the right to own property and the right to work.202 The number of inventors and artists was small. Their work could not be adequately protected by patents and royalties because, aside from the “material” (economic) aspect, a considerable number of scientists attach greater “importance to the spiritual side of their work than to the profits that they could gain from it; they only ask that their work should be recognized by future generations.”203 Similarly, artists and authors should be afforded the right to protect their work from being reproduced or distorted “for it was in the interest of humanity as a whole to prevent works which ennobled the human race from becoming a mockery.”204 For Cassin, the theoretical underpinning of rights of authors and inventors were firmly centered 198. Cuba, France, Mexico: Joint Amendment to Article 25 of the Draft Declaration (E/800), Draft International Declaration of Human Rights, U.N. GAOR, Comm’n on Hum. Rts., 3d Sess., U.N. Doc. A/C.3/360 (1948); UDHR, supra note 1. 199. Cuba, France, Mexico: Joint Amendment to Article 25, supra note 198. In favor: Panama, Peru, Poland, Uruguay, Venezuela, Argentina, Belgium, Brazil, China, Colombia, Cuba, Dominican Republic, France, Greece, Honduras, Luxembourg, Mexico, Netherlands. Against: Sweden, Syria, United Kingdom, United States of America, Yemen, Australia, Canada, Chile, Denmark, Ecuador, India, Norway, Pakistan. Abstaining: Saudi Arabia, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Afghanistan, Byelorussian. 200. Draft International Declaration on Human Rights, Hundred and Fifty-Second Meeting, U.N. GAOR, Comm’n on Hum. Rts., 3d Sess., at 635, U.N. Doc. A/C.3/SR.152 (1948). 201. Id. 202. Hundred and Fiftieth Meeting, supra note 189, at 650. 203. Id. at 620. 204. Id.

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on the personal creative attributes of individual human beings as a grounding for formal recognition and protection of the integrity of the individual’s creation as a fundamental human right.205 Therefore, Cassin’s individual centered rationale fits most naturally with the individual centered, liberal Lockean paradigm of (intellectual) property rights as a form of “reward.”206 By contrast, the reasons articulated by Mexico are more ambiguous as to their alignment with liberal, as opposed to communitarian or socialist, conceptions of rights. The Mexican delegation boasted of having led the call for the inclusion of intellectual and artistic rights in the Bogota Declaration as a progressive measure “because intellectual works were fundamental to social progress.”207 The UDHR had recognized the rights of the wage earner, the family and the child, but not “intellectual workers.”208 It would be a serious omission if the individual rights of the intellectual worker, scientist, or writer were not recognized.209 Furthermore, IP was worthy of equal protection for material property210 and its protection could not be left to national or international conventions, the effectiveness of which was difficult to gauge.211 Cuba concurred with Mexico that the idea of intellectual protection was new and important and should be included in the Declaration. Cuba also thought that not everyone was sufficiently gifted to “participate in” the cultural life of the community and therefore proposed to change the wording to “take part.”212 Mexico’s support for the inclusion of a second paragraph on the protection of the rights of authors thus appeared to be primarily based on the assimilation of an individual’s intellectual creations as a form of “work” or labor to physical work or labor; and therefore called for protection in the form of similar types of rights, versus property rights over tangible or physical property and intellectual property rights over intellectual creations.213 The delegate from Uruguay pointed out that the rights of authors over their own intellectual creations may not be readily subsumed under Article 15. The right to artistic property, he said: [S]hould not be regarded as coming under the general right of Property. Artistic property was covered by special laws in most countries. It was . . . difficult to admit that article 15, which dealt with the right to own property, was sufficient to protect the authors of literary, scientific and artistic creations.214 205. Id. 206. Adam Moore, Intellectual Property, The Stanford Encyclopedia Of Philosophy (Spring 2011 Edition), available at http://plato.stanford.edu/archives/spr2011/entries/intellectualproperty/. 207. Hundred and Fiftieth Meeting, supra note 189, at 650. 208. Id. 209. Id. 210. Id. at 618. 211. Id. at 617. 212. Id. at 618–19. 213. Id. 214. Hundred and Fiftieth Meeting, supra note 189, at 622.

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A similar point was raised by the Belgian delegate who agreed that “the article under discussion dealt with an intellectual right, not the right to own property covered in article 15. Lawyers generally agreed that an author’s right was a special conception.”215 Another significant difference between the French and Mexican grounding rationales is the primacy accorded by Mexico to the goal of furthering social progress.216 The protection of individual (physical and intellectual) labor is presented as a means to achieve overarching social goals and the public good, echoed in the Venezuela delegates’ support. Her government “regarded as one of its most important duties the development of the cultural level of the masses in order to enable every citizen to enjoy scientific, literary and artistic works.”217 Peru also supported the joint amendment, but stressed the importance of adding the term “freely” in the first part to convey that there was no creation “worthy of man” without “complete freedom.”218 Freedom of creative thought had to be protected “from harmful pressures which were only too frequent in recent history.”219 The UK, US, Chile, and Ecuador were amongst the most vocal opponents of the second paragraph.220 With remarkable foresight, Ecuador described Article 25 as “one of the most confused and contradictory that the Committee had so far had to examine.”221 Three main concerns were voiced by the objectors.222 First, the rights of authors, scientists, and inventors were not fundamental human rights because they lacked the necessary character of universality.223 They were rights affecting only a special category of persons.224 “Rights affecting a special category of persons,” the Chilean delegation said, “should not be included in the declaration.”225 Ecuador too thought that it was not appropriate “in a general declaration of human rights, to make special mention of the rights of writers and inventors, who formed only a small proportion of society.”226 Australia concurred that the rights of intellectual workers should not appear beside fundamental universal rights of a more general nature such as freedoms of thought and religion or the right to work.227 Second, while it was generally accepted that the rights of artists and scientists were worthy of protection, several delegations opposed the sec215. Id. 216. Id. at 617. 217. Hundred and Fifty-First Meeting, U.N. GAOR, Comm’n on Hum. Rts., 3d Sess., at 627, U.N. Doc. A/C.3/SR.151 (1948). 218. Hundred and Fiftieth Meeting, supra note 189, at 619. 219. Id. 220. Id. at 618–20, 624; Hundred and Fifty-First Meeting, supra note 217, at 631–32. 221. Hundred and Fiftieth Meeting, supra note 189, at 618. 222. Hundred and Fifty-First Meeting, supra note 217, at 631–32. 223. Two Hundred and Fifteenth Meeting, supra note 191, at 650. 224. Hundred and Fifty-First Meeting, supra note 217, at 632. 225. Id. 226. Hundred and Fiftieth Meeting, supra note 189, at 619. 227. Hundred and Fifty-First Meeting, supra note 217, at 630.


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ond paragraph because, in the words of the UK representative, it conflated two very different things, namely “the recognition due to the author of an invention—a very legitimate claim,” and on the other hand, the protection of, “the right of ownership attaching to an invention.”228 The latter related to copyright laws and was “dealt with by special legislation and in international conventions; it was not a basic human right.”229 “The declaration of human rights should be universal in nature and only recognize general principles that were valid for all.”230 The Chilean delegate wondered: “[T]o what extent it would be possible in a country where there existed no law protecting authors’ copyright and patents to speak of the infringement of fundamental human rights.”231 The US delegate opposed the inclusion of paragraph two in a universal declaration of human rights, because it “reproduced almost word for word the article in the Bogota Declaration dealing with patents and copyright.”232 Likewise, Canada thought that, as the subject matter of the amendment related to copyrights and patents, it should not be included in the Declaration, but rather in the Covenant,233 as did Australia.234 Third, several delegations expressed the view that the protection of IP rights fell properly within the scope of protection of (civil and political) general rights to property in Article 15 of the Declaration, although the rationale offered by socialist countries was different from that of the UK and US.235 The US, while generally accepting of the principle expressed in paragraph two, thought it “would be out of place in the declaration,” especially since it “dealt with a specific aspect of the rights of property already covered by Article 15.”236 In the UK’s view, the proprietary rights attaching to an invention were an aspect of the right of ownership.237 The UK “did not think it wise to state that principle in an article dealing with the right of an individual to participate in the intellectual life of the community.”238 Ecuador emphasized the social and public benefits of facilitating access to artistic and literary works, which it said were “part of mankind’s heritage; it should serve the cause of humanity and be accessible to all without restriction.”239 The point that was important to establish was “the State’s obligation to render works of art and intellectual creations accessible to the people by granting admission without charge to all museums and libraries and, above all, by extending public education.”240 Like Ecuador, 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240.

Hundred and Id. Id. Hundred and Hundred and Hundred and Id. Hundred and Id. at 621. Id. at 624. Id. Id. at 619. Id. at 618.

Fiftieth Meeting, supra note 189, at 624. Fifty-First Meeting, supra note 217, at 632. Fiftieth Meeting, supra note 189, at 620–21. Fifty-First Meeting, supra note 217, at 632. Fiftieth Meeting, supra note 189, at 621, 624.

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Chile pointed out that “the concept of the protection of intellectual work conflicted to a certain extent with that of freedom of access to all literary, artistic or scientific output.”241 v. Conclusion This article shows that there are some important conclusions to be drawn from the drafting history of Article 27(2) as to the rationale and philosophical grounding of rights of access to science and IP rights, which are relevant to current debates. The drafting history of Article 27 shows that delegations across the political divide were prompted by a wide variety of motives and rationales to support or reject the inclusion of a clause on the individual rights of authors and inventors in an article on public rights of access to science. South American Socialist countries backed the French initiative to include rights of authors and inventors to the protection of their intellectual creations, while the US, UK, and former Anglo-Saxon colonies opposed the proposal to the very end. Yet, behind the paradoxical political alignments there are important areas of convergence on the underlying philosophies and moral rationales which led to the adoption Article 27(2). The underlying rationale for the protection of individual rights in Article 27(2) lies in the drafters view that the personal, creative abilities, and capacities of individual human beings were worthy of protection as fundamental human rights. As such, the rights in question, qua human rights, are of an intrinsically personal (and universal) nature. They necessarily attach to, and can only be claimed by, individual human beings rather than entities such as commercial organizations or limited companies. This article thus lends further support to the same conclusion reached by ECOSOC in Comment No. 17 (2005) that the rights protected by Article 27(2) are not coextensive with IP rights, although IP rights and patent laws could certainly be deployed as tools to secure protection of the personal, human rights encompassed by Article 27(2). Furthermore, a central concern expressed by both supporters and objectors of Article 27(2) was that the protection of the individual rights of scientists and authors should not cut across the public good of facilitating access to knowledge, culture, and science, whether for liberal, utilitarian, or communitarian reasons. Either way, the underlying rationale for Article 27(2) provides little support for the view that IP rights are fundamental human rights, although the modalities of national and international IP and patent laws may certainly, and indeed, should be deployed to the service of human rights.242

241. Hundred and Fifty-First Meeting, supra note 217, at 632. 242. UDHR, supra note 1, ¶ 2.