[open-development] Fwd: IP and the Working Group on the Right to Development

Jonathan Gray jonathan.gray at okfn.org
Tue Jun 16 12:47:42 UTC 2009

Thought this might be of interest!


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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


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

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
partnership’s 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

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
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:

URLs in this post:

[1] IPW, United Nations, 3 April 2009:

[2] set of criteria:

[3] has a mandate to draw up a set of “operational sub-criteria”:

[4] 2007 working group report:

[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

Jonathan Gray

Community Coordinator
The Open Knowledge Foundation

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