[governance] FW: [A2k] IP and the Working Group on the Right to Development

Fri Jun 5 11:56:37 EDT 2009

I think this may be of interest...

MBG

-----Original Message-----
From: a2k-admin at lists.essential.org [mailto:a2k-admin at lists.essential.org]
On Behalf Of Pranesh Prakash
Sent: Thursday, June 04, 2009 11:28 PM
To: NLS IP; Commons Law; A2K Discussion List
Subject: [A2k] IP and the Working Group on the Right to Development

Dear All,
The Working Group on the Right to Development, a body established by the UN
Commission on Human Rights in1998 and whose mandate was continued by the UN
Human Rights Council, is looking at the WHO's IGWG and Wipo's Development
Agenda.  The IP-Watch report talks of the body working towards a better
balance between the "needs of industry and the needs of public policy".  Do
people on this list believe that such a distinction is valid?  Can't it be
argued that 'IP maximalism' harms industry too, while benefiting a few
monopolists / established players?

Regards,
Pranesh

Experts Aim To Balance Intellectual Property Rights And Human Rights

By Kaitlin Mara on 15 May 2009 @ 6:05 pm

The United Nations human rights framework is being brought to bear on
intellectual property law, in the hopes that the weight of expert voices in
human rights can lead IP regimes toward a better balance between the needs
of industry and the needs of public policy.

The Working Group on the Right to Development, an intergovernmental
political body, in August 2008 took on the task of examining two
intellectual property-related development partnerships that could influence
the work of policymakers in at least two UN institutions.

The two partnerships are: the World Health Organization (WHO)
Intergovernmental Working Group on Public Health, Innovation and
Intellectual Property (IGWG), and the World Intellectual Property
Organization (WIPO) Development Agenda.

The examination is being carried out by a high level-task force, a small
team of technical experts that acts at the behest of the working group. The
task force was created with the intention of moving right to development
discussions beyond political declarations from the working group into
concrete progress. The task force held its annual meeting from 1-9 April.
The task force secretary is Shyami Puvimanasinghe, from the Office of the
High Commissioner for Human Rights (OHCHR). The coordinator of the unit on
the Right to Development at OHCHR is Goro Onojima.

The task force has completed an initial review of the IGWG process, which
included an independent consultation paper (IPW, United Nations, 3 April
2009 [1]), though it has plans to make a return visit in the future to
check on ongoing work.

Analysis of the Development Agenda is still in the planning phases. The task
force is tracking preparations for a conference on IP and global challenges
being hosted by WIPO 13-14 July, to see if attending the conference will be
useful for its mandate. But to represent the right to development there, the
task force must wait for a mandate from the working group, which meets for
one week starting 22 June.

IP and human rights usually operate on different levels - an IP right is a
temporary monopoly; a human right is seen as something universal and
never-ending - but they can come into conflict.

The critical point with intellectual property rights and human rights,
according to Stephen Marks, a public health professor at Harvard University
who also chairs the high level task force, lies in resolving the
longstanding tension between these two kinds of rights.

For example, if patent limits access to new technologies it could be
construed to be an obstacle for the realisation of the human right to
benefit from scientific progress, said Marks. At the same time, IP has a
valuable function in stimulating innovation that leads to that scientific
progress, he added.

Defining Development: Human Rights Criteria

The high level task force is comprised of five experts, currently: Marks,
the chair; Nico Schrijver of Leiden University (Netherlands) Grotius Centre
for International Legal Studies; Sakiko Fukuda-Parr of the New School (US);
Raymond Atuguba of the Law Faculty at the University of Ghana; and Flavia
Piovesan of the Faculty of Law at Pontifical Catholic University of São
Paolo (Brazil). It also includes international agency observers from the UN
Conference on Trade and Development (UNCTAD), World Bank, the UN Development
Programme, the UN Educational, Scientific and Cultural Organisation
(UNESCO), the International Monetary Fund (IMF), and the World Trade
Organization (WTO).

It carries out its reviews of development partnerships using a set of
criteria [2] [doc, Annex II] for evaluating partnerships.

The criteria analyse: structural framework, for example whether a
partnerships institutions contribute to an enabling environment for
sustainable development or promote good governance; process, for example
the promotion of gender equality or provisions for meaningful stakeholder
consultation; and outcome, e.g. whether the partnership achieves
improvement in the well-being of populations and all individuals in
accordance with the declaration on the right to development.

The task force also has a mandate to draw up a set of operational
sub-criteria [3] [pdf] that would include more specific, concrete
provisions. The work of the task force is submitted to the Working Group on
the Right to Development, which takes recommendations from the task force
but is not bound by them in making decisions.

The criteria are not yet finalised, and information gleaned from the process
of analysing partnerships is being used to refine them. The exercise has a
deadline of 2010 to come up with a set of final criteria. Future work past
the 2010 deadline is an area of contention.

A 2007 working group report [4] [pdf] said that future work might take
various forms, including guidelines on the implementation of the right to
development, and evolve into a basis for consideration of an international
legal standard of a binding nature, through a collaborative process of
engagement.

If a legal convention on the right to development were to be formed, the
high level task force would likely become the drafting body for
international legislation, as it is the expert body on the issue, according
to a source familiar with the negotiations.

Susan Mathews, who was previously the secretary of the working group, said
there are several potential outcomes of this evaluation process. After the
working group presents programmes of developmental assistance and other
partnerships to the Human Rights Council, the council adopts resolutions
endorsing the findings of the working group, providing it legal backing.

Alternatively, the criteria of the working group could be adopted as a soft
law mechanism, providing guidelines for implementation and perhaps more
flexibility than international law as presently interpreted would allow, she
said. At the same time, any set of criteria needs to have a practical
application.

It is not clear what the future beyond the third phase due to be concluded
in 2010 will be, and how the working group will continue its work and
whether the task force will continue in this form or take another. However,
it is essential that the work done till that date is carried on in some form
or it will not have a sustainable, lasting impact or value, Mathews
explained.

Sources said that a group of countries from the global South referred to as
the Non-Aligned Movement [5] and the Group of African countries would like
to see a binding international agreement, in recognition of international
obligations and responsibilities pertaining to the right to development. For
countries in the Non-Aligned Movement, the right to development has a
distinct international dimension.  With regard to the right to development
acquiring legal character, developing countries are the primary actors
making the push.

Industrialised countries, by contrast, prefer the right to development to
fall under the auspices of national governments, and thus have called for
more tempered language regarding binding legal norms, according to sources.

The human rights paradigm and its values have already begun to shift the
world of intellectual property in the health sector, said Marks. The 2001
WTO Doha Declaration on Public Health, which outlines flexibilities in
intellectual property rights trade rules that can be used to better serve
public health needs, as well as the so-called paragraph 6 solution which
provides further flexibilities aimed at serving countries that lack the
manufacturing capacity to produce needed medicines, are both examples of
this shift, he added.

The June meeting of the working group will indicate the next steps on the
intersection of IP and public interest goals for the human rights experts.
Categories: English, Features, Human Rights, IP Policies, Patent Policy,
Public Health, Themes, United Nations, Venues, WHO

Article printed from Intellectual Property Watch:
http://www.ip-watch.org/weblog

URL to article:
http://www.ip-watch.org/weblog/2009/05/15/experts-aim-to-balance-intellectua
l-property-rights-and-human-rights/

URLs in this post:

[1] IPW, United Nations, 3 April 2009:
http://www.ip-watch.org/weblog/2009/04/03/high-level-task-force-on-human-rig
hts-turns-eye-to-health-and-ip/

[2] set of criteria:
http://www2.ohchr.org/english/issues/development/groups/docs/reportHLTF2008.
doc

[3] has a mandate to draw up a set of operational sub-criteria:
http://www2.ohchr.org/english/bodies/hrcouncil/docs/9session/A.HRC.9.17.pdf

[4] 2007 working group report:
http://www2.ohchr.org/english/issues/development/docs/WGreport2007.pdf

[5] Non-Aligned Movement: http://canada.cubanoal.cu/ingles/index.html

--
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283
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