Notion of the Right to Science and Culture

A number of international, regional and national laws recognize the right to science and culture as human rights. Most important are: the Universal Declaration of Human Rights (UDHR); and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Both Article 27 of UDHR and Article 15 of ICESCR contain the right to science and culture.[1] The only regional human rights system recognizing this right is the American Declaration of the Rights and Duties of Man of 1948.

Among five categories of human rights (civil, political, economic, social and cultural rights), the right to science and culture is classified as cultural rights. In another categorisation, the structure of UDHR is described as a temple founded on four pillars: the first one of the civil and personal rights; the social rights that belong to the individual in his and her relationships with the groups they participate; political right exercised to contribute to the formation of government institution or to take part in the decision-making process; and right exercised in the economic and cultural area.[2] The right to science and culture finds its place on the fourth pillar, but it is, as are most of other human rights, interlinked with the rights belonging to other pillars.

The right to science and cultural is multidimensional, encompassing both individual self-development and enabling institutions that facilitate the advancement of science for the public good and benefit of all through free individual participation.[3] It is also linked to freedom, and “people’s sense of their own self-respect and identity”.[4]

The notion of the right to science and culture is in its early stage, but it is generally understood as containing three components: right to the protection of moral and material interests resulting from his or her works (called “Author Clause” here); the right to take part in cultural life; and the right to enjoy the benefits of scientific progress and its application (called ‘dissemination side’ collectively for the latter two).[5] ICESCR expands further than UDHR the right to science and culture to cover states’ obligations to take measures necessary for the conservation, development and diffusion of science and culture, and for the freedom indispensable for scientific research and creative activity.[6]

From the holistic approach of human rights, the right to science and culture needs to be discussed in full consideration of its interrelationship with all other human rights. The intersection of human rights and IP can be discussed with focusing on the normative contents of, and state’s obligation imposed by the right to science and culture. This concentrated focus of study is both meaningful and purposeful in a sense that the right to science and culture is the most closely interlinked to IPRs, and can provide a possibility for alternative model for production and distribution of creative knowledge and information. This implies that other categories of human rights which have been widely discussed by scholars and international legal institutions in connection of IP regime and human rights such as the right to health, the right to food, the right to education, the right to free speech are not touched upon in a great detail.

Focuing on the right to science and culture also allows us an inclusive approach to IP. In the traditional discussions on the intersection of IP and human rights, IP has been treated as extraneous to human rights, and when an encounter between human rights and IP takes place, solutions to address conflicts between two have been suggested by subjecting IP to external human rights pressures.[7] The virtue of holistic approach with focusing on the right to science and culture right is that it enables us to embrace IP as an internal variable in the analysis of the relationship between human rights and IP.

[1] The term ‘right to science and culture’ was coined by Shaver and Sganga in 2009 and has been widely used by scholars and international human rights bodies, in particular by the UN Special Rapporteur (for cultural rights) in her two consecutive reports, UN Copyright Reports of 2014 (A/HRC/28/57) and UN Patent Report of 2015 (A/70/279).

[2] Claude, R. P. (2002) Science in the service of human rights. University of Pennsylvania Press , p, 21-22.

[3] Plomer, A. (2015). Patents, human rights and access to science. Edward Elgar Publishing, p. 34.

[4] Stamatopoulou, E. (2008). The right to take part in cultural life. UN CESCR E/C.12/40/9, p. 37.

[5] UN Copyright Report of 2014, ¶ 4.

[6] Article 15(2) and (3) ICESCR.

[7] For an explanation of this conflict resolving approach in the context of freedom of expression and copyright, see Drassinower, A. (2015). What’s wrong with copying? Harvard University Press, p. 203.