The Complex Interplay Between Intellectual Property and the Right to Science

Abstract

In April 2020, the U.N. Committee on Economic, Social and Cultural Rights released General Comment No. 25, which provides an authoritative interpretation of the right to science—a right that has hitherto not received much attention. In light of this publication and the recent celebration of the 75th anniversary of the Universal Declaration of Human Rights, this article examines the complex interplay between intellectual property and the right to science, with a view toward the human rights challenges brought about by both the COVID-19 pandemic and the arrival of generative AI.

The article begins by documenting the historical evolution of the right to science. It provides the much-needed background for policymakers, commentators, practitioners and NGO representatives interested in intellectual property law and policy. The article then turns to insights provided by General Comment No. 25, focusing on the comment's critique of intellectual property rights, the normative support it provides to pro-development efforts in the intellectual property arena, and the potential complications and hindrances to these efforts.

The second half of the article applies these insights to three new technological contexts that have recently garnered considerable attention from intellectual property policymakers and commentators: (1) the right to research; (2) the COVID-19 pandemic; and (3) generative AI. The discussion shows that the right to science can play three distinct functions—enabling, discursive and constraining—all falling within a continuum. Looking toward the future, the article concludes by providing three reflections on human rights strategies and practices: (1) the limitations of the use of human rights as trump cards in international intellectual property debates; (2) the need to develop different balancing processes to address tensions and conflicts within the intellectual property and human rights systems; and (3) the importance of appreciating the interrelationship between the three rights recognized in article 27 of the Universal Declaration of Human Rights and article 15(1) of the International Covenant on Economic, Social and Cultural Rights.