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Intellectual Property and Access to Science and Culture: Convergence Or Conflict?

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Intellectual Property and Access to Science and Culture: Convergence Or Conflict? Global Perspectives and Challenges for the Intellectual Property System A CEIPI-ICTSD publication series Intellectual Property and Access to Science and Culture: Convergence or Conflict? Edited by Christophe Geiger With contributions by Christophe Geiger, Farida Shaheed, Mylène Bidault, Lea Shaver, Carlos M. Correa, Rochelle Cooper Dreyfuss, Rebecca Giblin, Kimberlee Weatherall, and Peggy Ducoulombier Issue Number 3 December 2016 Global Perspectives and Challenges for the Intellectual Property System A CEIPI-ICTSD publication series Intellectual Property and Access to Science and Culture: Convergence or Conflict? Edited by Christophe Geiger With contributions by Christophe Geiger, Farida Shaheed, Mylène Bidault, Lea Shaver, Carlos M. Correa, Rochelle Cooper Dreyfuss, Rebecca Giblin, Kimberlee Weatherall, and Peggy Ducoulombier Issue Number 3 Published by International Centre for Trade and Sustainable Development (ICTSD) 7 Chemin de Balexert, 1219 Geneva, Switzerland Tel: +41 22 917 8492 Fax: +41 22 917 8093 Email: [email protected] Internet: www.ictsd.org Center for International Intellectual Property Studies (CEIPI) 11 rue du Maréchal Juin - BP 68 - 67046 STRASBOURG Email: [email protected] Internet: www.ceipi.edu Series editors: Christophe Geiger and Xavier Seuba, Center for International Intellectual Property Studies (CEIPI), University of Strasbourg; Pedro Roffe, International Centre for Trade and Sustainable Development (ICTSD), Geneva; and Ahmed Abdel-Latif, International Renewable Energy Agency (IRENA). CEIPI-ICTSD, Intellectual Property and Access to Science and Culture: Convergence or Conflict? Global Perspectives for the Intellectual Property System, Issue Number 3, 2016. The series editors are very thankful to Elena Dan, researcher at CEIPI, for her research and great editorial assistance in the preparation of this entire volume. The series editors also acknowledge the assistance of Valentina Tarantini, Emily Bloom, and Jimena Sotelo, ICTSD, for their contribution in the production of this publication. Citation: C. Geiger (ed.), Intellectual Property and Access to Science and Culture: Convergence or Conflict? Global Perspectives for the Intellectual Property System, CEIPI-ICTSD, Issue Number 3, 2016. The views expressed in this publication are the authors’ personal views and do not necessarily reflect the views of any institution they are affiliated with, nor the views of CEIPI, ICTSD, or their respective funding institutions. Copyright © ICTSD and CEIPI, 2016. Readers are encouraged to quote this material for educational and non-profit purposes, provided the source is acknowledged. This work is licensed under the Creative Commons Attribution-NonCommercial 4.0 International License. To view a copy of this license, visit: https://creativecommons.org/licenses/by-nc/4.0/ or send a letter to: Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA. ISSN 2414-343X TABLE OF CONTENTS Abbreviations and Acronyms 4 Foreword 5 About the Authors of the Third Issue 6 Introduction 9 Christophe Geiger Part One: Understanding the Relationship between Intellectual Property and the Right to Science and Culture: The 2014 and 2015 Reports of the UN Special Rapporteur in the Field of Cultural Rights 17 Introductory Remarks by the Special Rapporteur 19 Farida Shaheed Intellectual Property Policies and the Right to Science and Culture: The Work of the Special Rapporteur in Context 21 Mylène Bidault Intellectual Property and the Right to Science and Culture: The Reports of the Special Rapporteur in the Field of Cultural Rights 30 Lea Shaver Part Two: Assessing the Relationship between Intellectual Property and the Right to Science and Culture 43 Intellectual Property and Access to Science 45 Carlos M. Correa Patents and Human Rights: The Paradox Re-examined 54 Rochelle Cooper Dreyfuss Making Sense of “the Public Interest” in Copyright 66 Rebecca Giblin and Kimberlee Weatherall The Perspective of the European Court of Human Rights on Intellectual Property and Access to Science and Culture 79 Peggy Ducoulombier Taking the Right to Culture Seriously: Time to Rethink Copyright Law 84 Christophe Geiger 4 Intellectual Property and Access to Science and Culture: Convergence or Conflict? Abbreviations and Acronyms ACTA Anti-Counterfeiting Trade Agreement CESCR Committee on Economic, Social and Cultural Rights ECtHR European Court of Human Rights EPO European Patent Office EU European Union ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant of Economic, Social and Cultural Rights IP intellectual property NIH National Institutes of Health (US) OHCHR Office of the High Commissioner for Human Rights TRIPS Trade-Related Aspects of Intellectual Property Rights UDHR Universal Declaration of Human Rights UN United Nations UNESCO United Nations Educational, Scientific and Cultural Organization US United States USPTO US Patent and Trademark Office WIPO World Intellectual Property Organization WTO World Trade Organization Global Perspectives and Challenges for the Intellectual Property System 5 Foreword The Center for International Intellectual Property Studies (CEIPI) and the International Centre for Trade and Sustainable Development (ICTSD) are pleased to present the third issue of the publication series on Global Perspectives and Challenges for the Intellectual Property System. This issue continues to develop what the publication series intends to provide: high quality academic and policy-oriented papers dealing with topics that are of global importance because of their normative pre-eminence, economic relevance and socioeconomic impact. CEIPI and ICTSD decided to launch this common project convinced by the synergies existing between both organisations. We share a common interest in intellectual property (IP) as a tool for innovation, development and the pursuit of broader societal interests, being profoundly engaged in knowledgeable and informed reflection and international debates touching upon how intellectual property can fulfil these important goals. This series of papers aims, therefore, at provoking consideration of contemporary issues thanks to the collaboration of recognised scholars and experts, giving voice to them, enriching the academic debate and feeding policymakers with high quality materials. The series wishes to reach a broader audience, ranging from academics to public officials, including civil society, experts, business advisers and the broad membership of the intellectual property community. We also have in mind the actual implementation of intellectual property—how IP works in practice—without losing sight of public policy objectives, including its intersection with innovation, creativity and sustainable development goals. We sincerely hope you will find this third issue of the series dealing with Intellectual Property and Access to Science and Culture a useful contribution to a better understanding of the complexities of the interface between intellectual property and broader ethical goals involved with innovation policy. Christophe Geiger Ricardo Meléndez-Ortiz Director General and Director of the Research Chief Executive, International Centre for Trade Department of the Center for International and Sustainable Development (ICTSD). Intellectual Property Studies at the University of Strasbourg (CEIPI). 6 Intellectual Property and Access to Science and Culture: Convergence or Conflict? About the Authors of the Third Issue Mylène Bidault is Human Rights Officer at the Office of the High Commissioner for Human Rights (OHCHR), United Nations, Geneva. Carlos M. Correa is Director of the Center for Interdisciplinary Studies on Industrial Property and Economics at the Law Faculty, University of Buenos Aires; Advisor on Trade and Intellectual Property, South Centre, Geneva; Visiting Professor at the Center for International Intellectual Property Studies (CEIPI), University of Strasbourg. Peggy Ducoulombier is Professor of Public Law at the University of Strasbourg; Research Institute Carré de Malberg; Honorary Lecturer at the University of Aberdeen. Rochelle Cooper Dreyfuss is Pauline Newman Professor of Law and Co-Director of the Engelberg Center on Innovation Law and Policy at the New York University School of Law, United States; Visiting Professor at the Center for International Intellectual Property Studies (CEIPI), University of Strasbourg. Christophe Geiger is Professor of Law, Director General and Director of the Research Department of the Center for International Intellectual Property Studies (CEIPI), University of Strasbourg; Affiliated Senior Researcher at the Max Planck Institute for Innovation and Competition (Munich) and Spangenberg Fellow in Law & Technology at the Spangenberg Center for Law, Technology & the Arts, Case Western Reserve University School of Law (Cleveland, US). Rebecca Giblin is Senior Lecturer at the Faculty of Law, Monash University, Australia, and Visiting Researcher at the Center for International Intellectual Property Studies (CEIPI), University of Strasbourg. Farida Shaheed is former Special Rapporteur in the field of cultural rights, United Nations. Lea Shaver is Associate Professor, Indiana University, Robert H. McKinney School of Law, United States; Visiting Professor at the Center for International Intellectual Property Studies (CEIPI), University of Strasbourg. Kimberlee Weatherall is Associate Professor at the Law School of the University of Sydney, Australia. Introduction Christophe Geiger Global Perspectives and Challenges for
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