Nanotechnology, Human Rights, Patent Law and the Global South: A Brief Overview

Chapter 15
Nanotechnology, Human Rights, Patent Law and the Global South: A Brief Overview

Ana Nordberg

Introduction

Starting from a Global South perspective, this chapter presents a brief overview of the potential of nanotechnology to serve either as vehicle for broader attainability of human rights or to undermine current efforts. Particular attention is drawn to the complex interconnected issues of ensuring even access to the benefits of technological development and the need to maintain adequate levels of economic incentive to innovation. The present chapter begins with a short characterization of nanotechnology followed by the description of the current key fields of scientific research, state of the art and expectations for the future. The second part explores the social and economic relevance of nanotechnology and its implication for the Global South. In the third part, social, ethical and legal aspects of nanotechnology are framed in terms of human rights issues. The fourth part devotes closer attention to an analysis of the current patent rules intended to safe keep accessibility while confronted with the new challenges brought by nanotechnology inventions. Throughout this chapter, it will be sustained that nanotechnology poses normative challenges implying the need to re-evaluate the functioning of exclusions, exceptions and limitations to patent rights as mechanisms for safekeeping accessibility.

Nanotechnology

Nanotechnology is an umbrella denomination that designates technologies involving the manipulation of matter at the nanoscale (below 100 nanometers). A nanometer (nm) is equivalent to 10^-9m or 0.000000001m, in order to offer a sense of proportion it is usual to point out that one nanometer is about 1/80000 of the diameter of the average human hair or the equivalent to 10 hydrogen atoms.

The study and manipulation of matter at the nanoscale enables building structures and new materials at atomic, molecular and macromolecular scale. Such activities are not a question of mere scaling down since at nanoscale the properties of materials reveal differences due to two main reasons: firstly, quantum effects can dominate the behaviour of matter at the nanoscale, particularly in the lower ranges and thus affecting the magnetic, optical, and electrical behaviour of materials; and secondly, nanomaterials have a relatively larger surface area when compared to the same mass of matter in larger forms. These characteristics open the possibility to new uses of known materials, and the creation of novel functional materials. Nanotechnology is an interdisciplinary technological field where the distinction between disciplines such as physics, chemistry and biology becomes less clear. Such characteristics have consequences to the overall legal regulation of these technological advances.

At the present moment the exact meaning of the terms Nanoscience and Nanotechnology is still contentious among the scientific community. Such ambiguity, translates into the inexistence of a widely accepted legal definition of nanotechnology. In the absence of uniformity, the present work uses as main reference the definition formulated by the European Patent Office (EPO):

The term nanotechnology covers entities with a controlled geometrical size of at least one functional component below 100 nanometers in one or more dimensions susceptible of making physical, chemical or biological effects available which are intrinsic to that size. It covers equipment and methods for controlled analysis, manipulation, processing, fabrication or measurement with a precision below 100 nanometres.1

This choice is justified not only by the topic of this chapter – the interface between human rights and patent law – but also by the fact that the above definition was the basis for the current formulation of subclass B82Y of the International Patent Classification (IPC),2 thus embedding it with an aura of international consensus.

Key Fields of Scientific Research, State of the Art and Expectations for the Future

Nanoscience is considered a horizontal or enabling scientific field, since its advances typically can be applied to and developed in a wide range of scientific disciplines. Correspondently, nanotechnology is considered a converging technology that combines expertise from different scientific disciplines and applies in conjunction technologies originally developed in different industrial and technological sectors. Technological advances afforded by nanotechnology will typically have horizontal, cross-industry applications, and lead to overall progress in a wide range of technological areas and in certain cases possibly even determine the emergence of new industries.

Currently, the most promising fields of research concern medical and pharmaceutical applications, information technologies, energy production and storage, novel materials, food, water and environment, and security and law enforcement. To name a few examples: information technologies and telecommunications already use nanotechnology to obtain faster, smaller and more energy efficient devices; the use of nanotechnology in the medical sector is producing remarkable results particularly in improved drug delivery systems, medical diagnostic and therapeutic tools; finally, solar cells technology is expected to significantly benefit from nanotechnology leading to the wide scale use of solar energy as a major power source.

Several nanotechnology based consumer products are currently available on the market such as cosmetic products, textiles, metals, electronic devises and construction materials.3 These are mainly improvements of existing products (evolutionary nanotechnology). However, in the future developments of major importance are expected, meaning new or radically improved products, steaming from technological advances that from current time perspective will consist of a leap forward in our technological development (revolutionary nanotechnology).

With the USA, EU and Japan currently occupying the leading carriages, followed by Korea, China and Russia, not only is every nation claiming a place aboard the ‘nanotech-train’, every country is making considerable effort to secure the best possible seat. These technologies are expected to grant competitive advantage to the economies that first master them. Worldwide official documents and political rhetoric indicate a widespread perception that the nanotechnology industrial wave can bring changes to the world development and economic power status quo. Nanotechnologies have been described in a European Commission staff working paper4 as a promising candidate to become the next and sixth Kondratieff wave.5 The European Commission officially expressed concerns over the possibility of industry across the EU losing competitiveness should it fail to either lead, or follow closely, other economies in the development of nanotechnology.6 Nanotechnology has been ranked a priority in economical and industrial development policies both at national and supranational level. In recent years governments have elaborated Nanotechnology action plans and policies. According to the literature, by 2005 62 countries had or were in the process of initiating and implementing national nanotechnology initiatives (18 of them transitional and 19 developing);7 16 countries had at least groups or individual researchers working in nanotechnology (three transitional and 12 developing, including one least developed country) and 14 additional others had shown official interest in promoting research in this area (one transitional and 13 developing, including three least developed countries).8

Since nanotechnology entered the political agenda in the first years of the 21st century, specific and direct public and private funding of research and development projects has grown from marginal or non-existent to priority area of investment in research. A private consulting survey reports that by 2010 the annual public investment on nanotechnology research and development worldwide had reached 10 billion US dollars, and predicts a 20 percent increase of investment until 2013. Between 2000 and 2011 governments worldwide have invested more than 67.5 billion US dollars in nanotechnology funding. If corporate research and various other forms of private funding are taken into account, it is estimated that by 2015 nearly a quarter of a trillion US dollars will have been invested in nanotechnology.9

However, despite the enthusiasm and optimism created around the promises of a revolutionary technological wave these are still yet to become reality. Simultaneously, the scientific community has been recommending caution pointing out that the unrestrained development of nanotechnology may pose high risks for human health, environment and earth eco-systems, further adding that those risks are currently to a large extent unknown and unpredictable. Currently, safety issues are a main concern and as far as the EU is concerned regulatory authorities have stressed the importance of maintaining and applying a precautionary principle regarding nanotechnology safety issues10 while promoting complementary research concerning ethical, legal, social and governance aspects.

Developing World and Nanotechnology: The Global South Not Only is Joining the Train but Claiming a Seat at the Leading Carriages

The characterization of nanotechnology as being the next industrial wave was not ignored by the Global South. It is likely that developing countries11 have interpreted such characterization in official documents and public investment policies of the most developed nations as a signal to follow suit, allocating resources to take advantage of what appears to be a unique opportunity to recover in merely a few years from centuries of delay on the development race.

Commentators have mentioned that such hope may be misguided by the assumption that technological innovation by itself can lead to social and economic development, and may not take into account predicaments such as the dependency theory,12 according to which ‘one country’s industrial revolution is another country’s underdevelopment and these are two sides of the same coin of world capitalist development’.13 Schummer points out that under the predicament of such theory even assuming that nanotechnology will be in fact the next industrial revolution wave it would, as any the previous ones, necessarily reinforce the existing development gap rather than diminish it.14 Along this pessimistic view, it also has been observed that cutting edge technologies are expensive and inappropriate for the existing realities of the developing world and for this reason they are often viewed with scepticism by developing circles.15 Others consider that promoting investment in nanotechnology in countries such as Brazil and India brings forth the danger to divert financial resources and political focus from the basic needs of the large poor population in these countries.16 Another voiced concern is the possibility that the high level of investment needed to acquire new procedures and skill are likely to exacerbate the existing divisions between rich and poor.17

Sceptic views of development through emerging technologies present valid points: it may be ill advised to place too high hopes on new technologies. To anchor policies on the expectation that technological development by itself will be a quick fix to all human development issues is at best a leap of faith. Also, mimicking industrial policies from the North may deter governments from taking more appropriate, attainable and immediate options to manage each country specific developing needs. However, such pessimism is susceptible to simple counter argumentation. Assuming that such predictions are correct and dependency is inevitable, it can be equally validly argued that if developing countries refrain from investing in science and technology the development gap will deepen to an even greater extent. The industrial capability developing countries have succeed in acquiring so far will become obsolete if such industries fail to modernise and keep pace with technological development. Furthermore, changes in technology and production will dictate changes in the needs for natural resources. There is a high probability that nanotechnology technological advances will provide alternatives to the use of certain basic commodities, and thus either make redundant or severely reduce the demand for natural resources that are currently an important source of income for some countries in the Global South.

Like other emerging technologies, nanotechnology can be both relevant to address specific challenges faced by developing countries and be part of sustainable development policies and practice in developing countries, in particular for those who already have a relevant scientific and industrial capability. Data collected by the World Economic Forum, seems to reinforce an optimistic view of development through investment in emerging technologies, showing that while competitiveness in advanced economies has stagnated over the past seven years, it has improved in many emerging markets that invested in such technologies.18

To a certain extent national authorities in the Global South appear to subscribe to this view. A summary analysis of official documents and political discourse shows that the Global South is investing in building nanotechnology research capability, not merely to keep pace with the North but with tailor-made objectives adapted to specific needs and challenges, such as: First, seeking more efficient and less expensive solutions to specific major socio-economic problems, including economic dependence on the international market value of natural resources, sanitation, clean water supply and combat of epidemic diseases; Second, modernize the existing industries, increasing short term competiveness and preventing long term redundancy; and finally, find new markets and market niches, not heavily patented and still relatively unexplored, that can serve as future exporting goods and thus improve the commercial balance.

In the impossibility of a more detailed analysis, three countries in different continents with diverse historical backgrounds and distinct internal political approaches are worth a brief mention as interesting examples. China, Brazil and Russia are part of the six largest non-OECD economies known collectively as BRIICS’s19 and, despite profound historical differences, share some common characteristics such as: abundance of natural resources, wide territorial base, large and relatively young population and a respectable scientific community.20 Generally, these countries have seen the potential of nanotechnology and thus have channelled public funds to research in this area, while making efforts in improving the ability to translate scientific successes into commercial products.

In 2011 China became the country with the highest investment in nanotechnology research in terms of Purchasing Power Parity (18 billion US dollars or approx. 14.4 billion euro), surpassing even the USA. Although, in terms of actual investment adjusted for currency exchange rates, in 2011 China has spent only 1.3 billion US dollars (approx. 800 million euro), while the US has spent 2.18 billion US dollars (approx. 1.6 billion euro) during the same period.21

Russia has also become one of the major public investors in nanoscience and nanotechnology research with the establishment in 2007 of the Russian Corporation of Nanotechnologies (RUSNANO) along with a scheduled governmental investment of 130 billion roubles. The organization has an explicit focus on the commercialization of nanotechnology, and essentially functions as a venture capital fund, investing in selected projects in exchange for equity stakes (lower than 50 percent). The finance support is long term (over 10 years), and at the end of such period equity stakes will be sold following the logic of retrieving investment costs and not with the commercial approach of maximizing profit. From 2007 to 2009, RUSNANO had approved 61 projects, committing to invest 92.4 billion roubles (approx. 2.4 billion euro), and in the coming years RUSNANO predicts as outcome of the program that the volume of nanotechnology production will reach 900 billion roubles (approx. 19.8 billion euro) per year by 2015, which signifies a significant increase from the 4-5 billion roubles (approx. 88 million euro) registered in 2009.22

Brazilian authorities have elected nanotechnology as a priority area in industrial development. A federal program for development of nanoscience and nanotechnology was created in 2003 with the general goal of creating and developing new products and processes in nanotechnology, implementing them in order to increase the competiveness of the industry and also building human capacity to benefit from the economic, technological and scientific opportunities offered by nanotechnology.23 According to official data, the Brazilian government has directly invested 160 million reais (approx. 65 million euro) during 2000–2007 in nanotechnology research. Adding to the investments from the private sector, it is estimated that the total investment amounts to 320 million reais (approx. 130 million euro).24

In 2005, Brazilian President Lula da Silva delivered a speech at the official opening of the Brazilian National Program for the Development of Nanoscience and Nanotechnology, which in a certain way summarizes the strategic vision of the Brazilian authorities concerning nanotechnology. The Brazilian President expressed the view that investment in science, technology and educations is the safest and best investment as it produces an almost immediate return. Lula da Silva, also linked scientific and technological development to human progress, irradiation of poverty and reduction of social inequities and declared that ‘science and technology are instruments essential to economic development and constitute the basic priority of our government’.25

Investment in nanotechnology by the Global South started early to produce remarkable results. In the period ranging between 1999 and 2004, China ranked 3rd, Russia 11th, India 13th and Brazil 20th in the ranking of nanotechnology scientific publications indexed by the Science Citation Index (SCI).26 When the relative scientific quality of the publications is taken into account as measured by a pre-defined number of citations threshold, these countries perform equally well, accounting for 12 percent of core papers and 22 percent of citing papers in nanoscience and materials.27 However, in terms of number of patents, indicators suggest that patent activity has not accompanied scientific success given the strong concentration of patents in the most developed countries.28 In 2005 the European Union, Japan and the United States had contributed to 84 percent of all nanotechnology patents, while the BRIICS accounted only for 2.6 percent.29

Overall it can be observed that the investment in nanoscience and nanotechnology research and development is not a prerogative of the most industrialized nations. Instead, these nations face solid competition from emerging economies that see in cutting edge technologies an opportunity to acquire a competitive advantage by claiming their stake in the field at an early stage.

Every Rose has its Thorns: Nanotechnology and Human Rights

Most of the topics raised are neither novel, nor exclusive to nanotechnology, but rather reflect timeless human interrogations and concerns in face of the uncertainty brought by technological change. In general terms the issues under debate relate to concerns typical of human rights, such as: unfair distribution of the economic benefits associated with technology; uneven access to the benefits of technology; consumers, workers and environmental safety; negative social and anthropological impact of the technology; privacy and informed consent. Each of these topics, although intrinsically interconnected, can be analyzed using either a social, ethical or a legal perspective. The latter is a commonly used classification that is believed to offer the benefit of a clear analytic framework.30 This chapter will attempt to conjugate this classification with a human rights perspective by framing the issues that form part of the nanotechnology debate in terms of potential either to strengthen or threaten human rights attainability.

For the purposes of this chapter, human rights are to be understood in its broader sense, including not only a normative perspective based on a formalistic classification of rights, but also an ontological perspective. In this broad sense, the concept of human rights encompasses those rights codified as such in international and national legal sources, plus any right that can conceptually be constructed as an inalienable right based on core universal values intrinsically connected with the human condition and inherent to all human beings. However, for sake of clarity, such human rights lato sensu will be framed in terms of possible correspondence to the UN human right system, since it is the result of the possible, even if imperfect, international consensus on the matter.31

Social Aspects of Nanotechnology: Preparing the Stage For the Nano (R)Evolution

Nanotechnology is generally profiled as either the next evolutionary step in industrialization or even as a disruptive technology originating the next cycle in the industrial revolution: the nano revolution. Either way, new technologies with wide cross-sector applications necessarily imply a certain degree of social changes. Among the main social issues currently under debate particular attention has been devoted to: (1) public acceptance; (2) workers, consumers and environmental safety; and (3) access to nanotechnology. Translating these issues into human rights concerns, these would mainly correspond to social and economic human rights, such as those codified under the International Covenant on Economic, Social and Cultural Rights.32

Public acceptance has been generally debated as an economic issue in terms of marketing goods and services; however it also has a human rights dimension. Acceptance is connected with information and knowledge over the safety of nanotechnology products and consequences of long-term exposure to them; it is in this sense a right to information issue. Rights cannot be fully enjoyed and exercised without access to knowledge and information. Thus, although in the commercial context it may be contentious to speak of an absolute right to information, such right necessarily underlines any construction of inalienable right based on the value of human dignity. Public acceptance is crucial for the future development of any new technology, dictating not only consumer behaviour and preferences, but also public and private investment decisions. Negative public perception can have devastating consequences, delaying technological development for decades. Several studies on risk communication and risk perception have found the existence of a high level of scepticism and resistance to nanotechnologies in the EU.33 In the EU the issue has been linked with a low level of understanding of the technology by the general public,34 thus justifying the allocation of considerable financial resources to national and EU sponsored programs in this area.35 The issue of public acceptance is not merely a European concern. Often countries that prioritize nanotechnology in their industrial policies have also included in their national nanotechnology policies measures to disseminate knowledge through the general public, such as popular science publications, public conferences and exhibitions, thematic web pages and plans to introduce the topic in basic education programs.

Workers, consumers and environmental safety are currently central issues in the nanotechnology debate and a major worldwide concern for regulatory authorities. In normative terms, these concerns can generally be linked to the right to an adequate and progressively improved standard of living, as well as to a right to health that cannot be attained without taking into account environmental protection. The right to safe and healthy working conditions is protected under article 7 (b) CESCR, while consumer and environmental safety can be included under the ‘right to a standard of living adequate for the health and well-being’ of individuals and families.36 The latter is developed in the CESCR as the right to adequate standard of living and the continuous improvement of living conditions,37 and the right to ‘the enjoyment of the highest attainable standard of physical and mental health’38 that includes both ‘the improvement of all aspects of environmental and industrial hygiene’39 and ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’.40

The debate concerning nanotechnology safety gain public notoriety with the publication of the Royal Society and Royal Academy of Engineering 2004 report, which raised the question whether nanotechnology components or applications (such as, for example, nanoparticles and carbon nanotubes) have a direct impact on the natural environment and on human health and wellbeing.41 The EU has stressed the importance of maintaining and applying a precautionary principle while supporting further scientific studies and regulatory initiatives.42 International organizations have also been active in the field, and for the most part agree with the need for caution and further research regarding safety issues. To mention a few examples, the OECD established a Working Party on Manufactured Nanomaterials in September 2006; and the Food and Agriculture Organization of the United Nations has convened, together with the World Health Organization, a joint expert meeting to ‘develop global guidance on adequate and accurate methodologies to assess potential food safety risks that may arise from nanoparticles’.43

Technological development naturally leads to interrogations over the possibility of uneven access to its benefits, and the need to ensure effective universal realization of the right ‘to enjoy the benefits of scientific progress and its applications’.44 Individual and collective access to the benefits in terms of human development and the distribution of the economic advantages brought by nanotechnology remain a concern often raised. A report prepared for the United Nations Industrial Development Organisation (UNIDO) and published in 1997 is perhaps one of the earliest publications to consider the potential implications of nanotechnologies in aggravating the gap between developed and developing countries.45