The Right to Science and Culture
Chapter 5
The Right to Science and Culture
Introduction
Rights relating to the development of science and culture are enshrined in international human rights instruments, notably in Article 27 of the UDHR and Article 15 of the ICESCR. These provisions recognise the right to take part in cultural life, the right to the benefit from scientific progress and its applications, as well as the right of those who contribute to the development of science, arts or culture.1 The analysis of these provisions can contribute to developing a human rights framework within which knowledge creation, and access to it, is promoted and balanced. However, these provisions have barely received attention, either from the UN human rights mechanisms or from academic literature. The Committee on Economic, Social and Cultural Rights (CESCR) has produced interpretive comments on the right to take part in cultural life (Art. 15.1(a) of the ICESCR)2 and on the right to the protection of moral and material interests of the author (Art. 15.1(c) of the ICESCR),3 but not on the right to the benefit from scientific progress and its applications (Art. 15.1(b) of the ICESCR) as of the present date. The rights stipulated in Article 15.1(b) and (c) are of particular relevance to the present context of intellectual property and access to medicines. This chapter highlights some essential features of Article 15.1(b) and Article 15.1(c).
Considering that the normative contents of these rights have not yet crystallised, the first section of this chapter briefly reviews the drafting history of the relevant provisions in the UDHR and ICESCR.4 Although the provisions must be interpreted and implemented in light of current developments, the drafting history helps to clarify their origin and meaning, and provides some valuable perspectives on contemporary issues arising from intellectual property, including the issue of access to medicines. The second section provides a preliminary understanding of the normative content of the right to enjoy the benefits of scientific progress and its applications, using some key concepts of the CESCR’s analytical framework, for example freedoms and entitlements, and a tripartite typology of State obligations to respect, protect and fulfil. This analysis is based on emerging discussions on this right. The third section briefly discusses the right to benefit from the protection of the moral and material interests of the author. Drawing upon the interpretive comments of the CESCR,5 this chapter pays special attention to some of the elements of the right that often create confusion, with a view to promoting enhanced understanding.
Drafting History
Article 27 of the UDHR and Article 15 of the ICESCR both address everyone’s right to the benefits of scientific progress and cultural participation on one hand and the right to the protection of moral and material interests of the author on the other. This chapter refers to the former as the ‘access element’ and the latter as the ‘protection element’, as Lea Shaver suggested.6 While the provisions on the right of everyone to the benefits of scientific advancement and cultural participation were adopted with little dispute, the provision on the right to benefit from the protection of the moral and material interests of the author gave rise to much controversy throughout the drafting process of both the UDHR and ICESCR.
Article 27 of the Universal Declaration of Human Rights
Article 27 of the UDHR:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has 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.
John Humphrey, Director of the Division on Human Rights, compiled a list of draft provisions for the UDHR in the First Session of the Human Rights Commission. Humphrey’s draft included the provision ‘[e]veryone, has the right to participate in the cultural life of the community, to enjoy the arts and to share in the benefits of science’.7 According to Johannes Morsink’s account, this cultural right provision holds an idea that equal opportunity shall be provided for all to participate in the cultural life.8 It is also noteworthy that the drafters, by stressing the word ‘benefits’, made it clear that the benefits of scientific progress shall be available to all as a human right.9 The French delegate René Cassin concurred that ‘even if all persons could not play an equal part in scientific progress, they should indisputably be able to participate in the benefits derived from it’.10 Following a suggestion by the Peruvian delegate, José Encinas, the word ‘freely’ was inserted in the final draft of what is now Article 27.1, in its first sentence. Encinas emphasised the significance of recognising ‘freedom of creative thought, in order to protect it from harmful pressures which were only too frequent in recent history’.11 His proposal was adopted by a vote of 38 to 0, with two abstentions.
The right to the protection of the moral and material interests of the author was not in Humphrey’s draft article on cultural rights. Cassin introduced a provision on the author’s right in his draft,12 emphasising the ‘moral rights’ aspect. The Cassin provision reads that ‘[t]he authors of all artistic, literary and scientific works and inventors shall retain, in addition to the just remuneration of their labour, a moral right to their work or discovery which shall not disappear even after such work or discovery has become the common property of mankind’.13 However, the proposed provision on the right to the protection of the moral and material interests of the author encountered objections. The UK and Indian delegations expressed their view that ‘no special group should be singled out for attention’.14 A similar view recurred when the UK and Australian delegations argued that this proposed right could not fit with human rights of a general nature. The US delegation contended that this right would be more properly dealt with in ‘the domain of copyrights’.15 However, the French delegation highlighted ‘the special character of the moral interests’ over mutilation and other misuse of the creation.16 Mexican delegate Pablo Campos Ortiz claimed that all forms of work, manual as well as intellectual, should be safeguarded, and defended what is now the second paragraph of Article 27 as the one protecting the rights of the individual ‘as an intellectual worker, artist, scientist or writer’.17 The Chinese delegate, Peng-Chun Chang, offered a different perspective, in favour of the right, proposing that the moral rights provision could promote the interests of everyone, as well as of intellectual workers, by securing the integrity of the creation.18
There were two international events that also influenced the drafting process: the Conference on the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the drafting of the American Declaration on the Rights and Duties of Man (hereinafter, ADRD), both of which took place in 1948.19 As an outcome of the Conference, the Berne Convention was revised so as to strengthen protection against actions that would be prejudicial to the author’s honour or reputation. Most Latin American nations recognised the author’s right by including, in the ADRD, ‘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’. The ADRD offered the French delegation, as well as delegations from Latin America, a strong basis for discussion in favour of the inclusion of the right to the protection of the moral and material interests of the author in the UDHR. The provision on 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 (Art. 27(2) of the UDHR) was adopted by 18 votes to 13, with 10 abstentions.20
Article 15 of the International Covenant on Economic, Social and Cultural Rights
Article 15 of the ICESCR reads that:
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life
(b) To enjoy the benefits of scientific progress and its applications
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.
As with the drafting process of the UDHR, while there was strong support for the right to the benefits of scientific progress (Art. 15.1(b)) and cultural participation (Art. 15.1(a)), the provision on the right to the protection of the moral and material interests of the author (Art. 15.1(c)) had to overcome strong objections. The United Nations Educational, Scientific and Cultural Organization (UNESCO) presented two versions of a draft provision concerning science and culture. With regard to the right to the benefits of scientific progress, Jacques Havet from UNESCO stated:
The right of everyone to enjoy his share of the benefits of science was to a great extent the determining factor for the exercise by mankind as a whole of many other rights … Enjoyment of the benefits of scientific progress implied the dissemination of basic scientific knowledge, especially knowledge best calculated to enlighten men’s minds and combat prejudices, coordinated efforts on the part of States, in conjunction with the competent specialized agencies, to raise standards of living, and a wider dissemination of culture throughout the processes and apparatus created by science.21
No dissent to his proposal was presented and the text on the right to cultural participation (Art. 15.1(a)) and the benefits of scientific progress (Art. 15.1(b)) was adopted by a vote of 15 to 0, with three abstentions.22
The proposed text on the right to the protection of moral and material interests of the author generated heated debate. The US delegate, Eleanor Roosevelt, pointed out ‘the complexities of that subject’ as a reason for the inappropriateness of its inclusion in the Covenant.23 The UK and Yugoslavia made similar points.24 Another important concern raised by other delegates was the negative impact that the protection of an author’s right might have on the under-developed countries. The Chilean delegate, Valenzuela, noted:
[I]ntellectual production should be protected; but there was also need to protect the under-developed countries, which had greatly suffered in the past from their inability to compete in scientific research and to take out their own patents. As a result, they were in thrall to the technical knowledge held exclusively by a few monopolies. As the [inclusion of the right to the protection of the moral and material interests of the author] would perpetuate that situation, [I] would have to vote against it.25
It was followed by similar positions being adopted by Azmi Bey, the Egyptian delegate, and Whitiam, the Australian delegate.26 As a result, when the Commission on Human Rights submitted the draft article to the General Assembly, the article lacked the provision on the protection of the moral and material interests of the author.
However, a provision on this right resurfaced in the General Assembly Third Committee in 1957. The Uruguayan and Costa Rican delegates submitted a proposal reinserting the provision on the right to the protection of the moral and material interests of the author. Tejera, from Uruguay, reiterated the point made by Chang in earlier discussions on the UDHR, stating that ‘the right of the author and the right of the public were not opposed to but complemented each other. Respect for the right of the author would assure the public of the authenticity of the works presented to it’.27 Responses to the proposal varied. However, the provision on the right to the protection of the moral and material interests of the author finally survived objections and was eventually adopted, as Article 15.1(c), by 39 votes to 9, with 24 abstentions.28
It is worthwhile to note a few points regarding the drafting history. First, while most debates concentrated on whether the provision on the right to the protection of the moral and material interests of the author should be included, neither the scope of the right nor the methods of implementing the right was delineated by the drafters. Second, given that three elements, the right to cultural participation, the right to the benefits of scientific progress, and the right to the protection of the moral and material interests of the author, constitute a single article in the UDHR and ICESCR, the drafters seemed to see these three elements as interrelated, which has to be kept in mind in interpreting the provisions.29 Nevertheless, little consideration was given to the relationship of, and the potential tension between, the ‘access element’ and the ‘protection element’.30 Therefore, it is left to the human rights community of today to clarify the meaning of each right and their relationship to each other.
The Right of Everyone to Enjoy the Benefits of Scientific Progress and its Applications (Art. 15.1(b) of the ICESCR)
Background
Several international human rights instruments enshrine the right of everyone to enjoy the benefits of scientific progress and its applications. Article 27(1) of the UDHR states that ‘everyone has the right … to share in scientific advancement and its benefits’.31 The right to enjoy the benefits of scientific progress became a legally binding norm as Article 15 of the ICESCR included it in its paragraph 1(b).32 This right is also found in regional human rights instruments, such as Article 13 of the ADRD33 and Article 14 of the Protocol of San Salvador.34 As seen in the drafting history, Article 27(1) of the UDHR and Article 15.1(b) of the ICESCR were adopted with little controversy, which indicates general agreement among the drafters on recognition of the right to enjoy the benefits of scientific progress and its applications. However, since then, little work has been undertaken to elaborate the meaning of the right to enjoy the benefits of scientific progress, and authoritative interpretation of this right has yet to be adopted by the CESCR.35 In the meantime, accelerated scientific and technological developments have increased the effects on human rights, both in positive and negative ways, giving rise to a strong need for human rights guidance in this field. The right to enjoy the benefits of scientific progress can potentially help to address normative issues arising from scientific development.
Only recently, academic literature discussing the right to enjoy the benefits of scientific progress has begun to emerge.36 A pioneering work for developing the normative content of this right was started under the auspices of UNESCO, which culminated with the adoption of the Venice Statement.37 The Venice Statement, aiming to clarify the meaning of the right to enjoy the benefits of scientific progress, was the outcome of a series of meetings by a group of experts from academia, intergovernmental organisations such as UNESCO, WIPO and the WTO, and UN human rights bodies such as the Office of the High Commissioner for Human Rights and the CESCR. This initiative was followed by further efforts to elaborate the content of this right. In 2010, the Board of Directors of the American Association for the Advancement of Science (AAAS), the world’s largest multi-disciplinary scientific society, adopted a statement that recognised the importance of this right, and has contributed to the relevant discussions in a significant way.38 In the following year, the Inter-American Commission on Human Rights held a hearing on this right.39 The UN Independent Expert in the field of Cultural Rights also undertook the work to further elaborate the normative content of the right to enjoy the benefits of scientific progress, taking into account the views of States and experts, and placed this right on the agenda of the Human Rights Council in 2012.40
Building upon this recent work, the following section analyses the content of the right to enjoy the benefits of scientific progress, and corresponding obligations of the State.
Scope of the Right to Enjoy the Benefits of Scientific Progress and its Applications
The Special Rapporteur in the field of cultural rights sets out that basic tenets of this right include (a) access by all without discrimination to the benefits of science and its applications, including scientific knowledge; (b) freedom indispensable for scientific research; (c) participation of individuals and communities in decision making; (d) an enabling environment for the conservation, development and diffusion of science.
The right to enjoy the benefits of scientific progress contains both freedoms and entitlements. While this section considers the general contours of this right, it pays special attention to universal access to the benefits of scientific progress as a key element of this right, and addresses the implication of this right for knowledge production.
Freedoms
The freedoms entail academic and scientific freedom, and freedom from potential harmful effects of science and its applications. The Venice Statement has considered academic and scientific freedom to include ‘freedoms of opinion and expression, to seek, receive and impart information, and association and movement’.41 Freedom of expression, and freedom to seek, receive and impart scientific information and ideas are inextricably related to the right to information enshrined in Article 19.2 of the ICCPR.42, 43 The freedom of scientists to association and movement is respectively linked with Article 22.1,44 and Article 12 of the ICCPR.45 The freedom to scientific information and ideas not only has merit on its own, but is also a prerequisite for the realisation of the right to enjoy the benefits of scientific progress. Free access to scientific information is essential for identifying the potential benefits of scientific progress and to its enjoyment.46
Freedom of scientific research is directly addressed by Article 15.3 of the ICESCR, which states that ‘[t]he States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity’. A significant amount of scientific research is now undertaken by industries.47 In this changing context, the freedom of scientific research may be interfered with not only by States, but also by private, non-State actors, which presents new challenges.48
Freedom from potential harmful effects of scientific progress also constitutes an element of the right to enjoy the benefits of scientific progress. Potential harmful effects of scientific advancement on human rights have been a major concern in terms of scientific progress and human rights. This is reflected in the Proclamation of Teheran (1968),49 the Declaration on the Use of Scientific and Technological Progress in the Interest of Peace and for the Benefit of Mankind (1975),50 and the Vienna Declaration and Programme of Action (1993),51 although the main area of such concern has been changing according to the development of technologies and social responses to these developments. For example, while the arms race appeared a major source of concern in the 1975 Declaration,52 the potential adverse effects of ‘the biomedical and life sciences as well as … information technology’ were given attention in the Vienna Declaration (1993).53 The freedom from potential harmful effects of scientific progress indicates that the freedom of scientific research is not without limitations, but should be exercised responsibly.
Entitlements
The cornerstone of this right is that everyone should be able to share the benefits of scientific progress and its applications. The entitlements include access to scientific information and education, participation in the process of setting a priority of scientific research, and access to products and services generated by scientific progress. Access to scientific information constitutes entitlement as well as freedom. The meaningful participation of people in the decision-making process on issues relating to science is also crucial to the right to enjoy the benefits of scientific progress, particularly when determining priorities for the development of science and technology.54
Access to the benefits of scientific progress and its applications is also linked to other human rights. Caution should be exercised when the state of scientific and technological development seems to be used as a convenient excuse for the non-realisation of human rights.55 However, the ability to access products and services generated by scientific progress can have a significant impact on the realisation of certain human rights, such as the rights to food, health, education, and freedom of information and expression. For instance, in the area of the right to food and the right to health, scientific progress may condition the availability and quality of food and health products which are crucial to the realisation of such rights.56 The relevance to the realisation of other human rights can be one of the criteria for evaluating what scientific development should be prioritised and equitably accessed in terms of the right to enjoy the benefits of scientific progress. For example, according to the extent in which specific products resulting from scientific development are necessary for the realisation of the right to health, their comparative importance in terms of the right to enjoy the benefits of scientific progress can rise. It can be summarised that ‘innovations essential for a life with dignity should be accessible to everyone, in particular marginalized populations’, which the Special Rapporteur in the field of cultural rights considers as a core principle regarding access to scientific applications.57
Obligations of the State
Obligation to respect
The obligation to respect requires the State not to be involved in any act which negatively affects the enjoyment of the benefits of scientific progress and its applications. The State must refrain from restricting freedom to seek, receive and impart scientific information and ideas, and freedom of scientific research.58 The obligation of the State ‘to respect the freedom indispensable for scientific research and creative activity’ is further confirmed by Article 15.3 of the ICESCR.59 The obligation to respect is not exclusively a negative obligation. For instance, as the Venice Statement rightly noted, the obligation to respect includes ‘to take appropriate measures to prevent the use of science and technology in a manner that could limit or interfere with the enjoyment of the human rights and fundamental freedoms’,60 which is also linked with the obligation to protect in the event of non-State actors’ engagement with the abuse of scientific and technological development.