The Right to Access the
Benefits of Science &
new biotechnologies
4th
AAAS
December 2012
Prof. Aurora Plomer, LLB, BA, MA, PhD
Director of Sheffield Institute of Biotechnology, Law and Ethics
University of Sheffield
Background
Book: Human Rights, IP Rights & New
Biotechnologies (Johns Hopkins University
Press, forthcoming 2013)
 Spectacular advances in the life-sciences
 Extension of patents to isolated cells, genes
and foundational/basic knowledge
 Human rights constraints on research in the
biosciences (e.g. Venice Statement, 2009)
Patents on life: European divisions
Nature Volume: 480, Pages: 310–312 Date published: (15 December 2011) DOI: doi:10.1038/480310a
UK hESC Patents – Before Brustle v Greenpeace
A. Plomer, ‘Article 6(2)(c) of the Biotech Directive: Towards Systemic Legal Conflict’ in A. Plomer &
P. Torremans (eds) Embryonic Stem Cell Patents: European Law and Ethics (OUP, 2009)
EU Directives & CJEU rulings –
Human Dignity: Hits/year
Occurrence of 'Human Dignity'
12
10
8
6
4
2
0
1980
-2
1985
1990
1995
2000
Year
2005
2010
2015
Universal Declaration of Human Rights (1948)
Article 27
• (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.
Two central questions

Apparent tension between public rights of
access to science and private rights of
authors/inventors in Art. 27 UDHR and Art.
15 ICESCR. Why?

Do Art. 27 UDHR and Art. 15 ICESCR carry
ethical restrictions or limits on scientific
research in the life-sciences and if so which?
Methodology

Review drafting history of Art. 27 UDHR &
Art. 15 ICESCR.
 Identify areas of overlapping consensus &
core values
 Draw implications for emerging
biotechnologies
Why look back?
“… the present declaration had been drafted on
a firm international basis .... a compilation not
only of hundreds of proposals made by
governments and private persons but also of
the laws and legal findings of all the Member
States of the UN”
Dr. Malik, delegate from Lebanon, speaking at the General Assembly (1948)
UDHR Drafting Committee &
Commission on Human Rights

Drafting committee on the Universal Declaration of Human
Rights had eight members representing a plurality of political
and religious outlooks: 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.
Article 27 (II)
Soviet Union proposal to add “The development of science must serve the interests
of progress and democracy and the cause of international peace and co-operation”
rejected as providing a basis for political interference with freedom required for
scientific and artistic expression (3rd Session CHR, May-June 1948)
 Several unsuccessful attempts by South American and French delegations to
introduce protection for “scientific and artistic pioneers (….) those who
contributed to the advance of civilization were entitled to have their interests
protected.” (Cassin, 25th August 1948)
 Turning point is 3rd Plenary meeting of General Assembly (20th of November
1948). Joint submission by France, Mexico, and Cuba to add a second paragraph to
Article 25 (now Article 27) : “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.”
 Resisted by UK and US on grounds that clause relates to copyright/property rights
(art 15). Confuses IP rights with human rights. Ecuador says it is the most
confused text in the Declaration. But joint submission carries the day


A/C.3/SR.150 - 150th Meeting, held on Saturday, 20 November 1948: 01/01/1948
UK/US
Rights of authors are a species of legal right –
(copyright/patents).
 IP rights are not universal
 Rationale for IP rights/patents is
social/economic utility.

"to talk of the natural rights of an inventor is to talk nonsense”
Jeremy Bentham
France & South American countries
•
Intellectual creations are a form of work/labour
•
Intellectual work is as worthy of
recognition/remuneration as physical labour.
•
Intellectual works are fundamental to social and
economic progress
•
“… the labor of his body and the work of his hands, we may
say, are property his.” J. Locke

In favour Argentina, Belgium, Brazil, China, Colombia, Cuba,
Dominican Republic, France, Greece, Honduras, Luxembourg, Mexico,
Netherlands, Panama, Peru, Poland, Uruguay, Venezuela.

Against:, Australia, Canada, Chile, Denmark, Ecuador, India, Norway,
Pakistan, Sweden, Syria, United Kingdom, United States of America,
Yemen

Abstentions: Saudi Arabia, Ukrainian Soviet Socialist Republic, Union
of Soviet Socialist Republics, Yugoslavia, Afghanistan, Byelorussian.
Cuba, France, Mexico: Joint Amendment to Article 25 of the Draft Declaration (E/800).
International Covenant on Economic Social and Cultural
Rights (1966)
Article 15
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. 4. The States Parties to the present Covenant recognize the benefits to
be derived from the encouragement and development of international
contacts and co-operation in the scientific and cultural fields.
Overlapping Consensus
•
The right to access the benefits of scientific progress is directed
to the protection of the universal human ability for selfexpression and creativity.
Realization of the right requires:
• - enabling educational institutions and infrastructures for
diffusion, dissemination and transmission of knowledge, science
and the arts.
- freedom of expression and freedom from political and/or
religious interference
- enabling democratic institutions.
•
The right does not prescribe any particular form of legal
protection. IP rights are NOT fundamental human rights.
Universality & Interconnectedness of
Human Rights
Art. 2
Non-Discrimination
Art. 26 Right to
Education & full
development of the
human personality
Art. 24 Rest and
leisure
Art. 3 Right to Life,
Liberty & Security
Art. 18 Right to
Freedom of
thought/conscience
/religion
Human Dignity


The drafters of the UDHR did not think of human dignity
as a separate right, but as a fundamental value reflected in
and guiding each of the articles and discrete rights
proclaimed in the UDHR (and subsequent covenants)
A violation of each discrete right , i.e. non-discrimination,
to health, education and to access the benefits of science is
a violation of human dignity.
Thank You