Cristian Timmermann

The intellectual property regimes we have currently in place are heavily under attack. One of the points of criticism is the interaction between two elements of article 27 of the Universal Declaration of Human Rights, the widely discussed issue of being able to benefit from scientific progress and the less argued for position of having a right to take part in scientific enterprises. To shine light on the question if we should balance the two elements or prioritize one of them, an exploration will be offered on how benefiting from scientific progress and the ability to participate in the advancement of science relate to securing human capabilities. A different perspective to the question will be gained by identifying the problem as an issue of misrecognition, especially the failure to recognize many willing collaboration partners in scientific research as peers. Lastly, I will argue that cooperative justice requires that if we have an innovation incentive system that disproportionally benefits one particular group, a certain duty to counterbalance this advantage exists when we are relying on mutual cooperation for the recognition of intellectual property rights.

Taking into consideration the extremely harsh public health conditions faced by the majority of the world population, the Health Impact Fund (HIF) proposal seeks to make the intellectual property regimes more in line with human rights obligations. While prioritizing access to medicines and research on neglected diseases, the HIF makes many compromises in order to be conceived as politically feasible and to retain a compensation character that makes its implementation justified solely on basis of negative duties. Despite that current global health realities make such steps reasonable, the paper looks up the negative effects on one overlooked human right: the right to participate in scientific advancement.

An idea is a public good. The use of an idea by one person does not hinder others to benefit from the same idea. However in order to generate new life-saving ideas, e.g. inventions in the life sciences, a huge amount of human and material resources are needed. Powerful, but highly criticized tools to speed up the rate of innovation are exclusive rights, most prominently the use of patents and plant breeders’ rights. Exclusive rights leave by nature a number of people empty-handed, with starvation, stuntedness, prevalence of disease and death as preventable and quotidian consequences. To stimulate a human rights compatible use of exclusive rights a wide range of moral frameworks have been developed to condemn current praxes. Most prominent in the debate are theories building on (1) utilitarian calculations of weighing benefits with Peter Singer as a prominent advocate, (2) Pogge’s vindication of compensatory duties for institutional harms, (3) a comprehensive analysis on how the current innovation incentive system fails to secure human rights and human capabilities and lastly (4) showing how the status quo nurtures misrecognition. With help of those theories modest targets as well as a thorough restructure of the innovation incentive system can be justified. Those theories have the mammoth task of restraining well-established ideas supporting the permissibility of a reckless use of property rights that are deeply anchored in the property law discourse. Life sciences raise a range of special problems when justifying pro-poor innovation. Healthy people living in a society with a good sanitary infrastructure need far less resources to tackle health problems than people in places with a poor infrastructure. Patents that involve gene sequences (or part thereof) make inventing around impossible, making the seeking of licenses mandatory for investigators wanting to make follow-up research with the molecule. Speedy sharing of data concerning public health hazards or threats to food security are vital to maintain living standards.

One of the most attractive, but nevertheless highly controversial proposals to alleviate the negative effects of today’s international patent regime is the Health Impact Fund (HIF). Although the HIF has been drafted to facilitate access to medicines and boost pharmaceutical research, we have analysed the burdens for the global poor a similar proposal designed to promote the use and development of climate-friendly technologies would have. Drawing parallels from the access to medicines debate, we suspect that an analogous “Climate Impact Fund” will increase the already very high scientific and technological supremacy of the developed world over the Global South. We advocate countering this dominance on the ground that countries with scarce research and development capacities will be in a difficult position to reject technologies and will not have a say on how such technologies should look like. Further, addressing global hazards should be an inclusive endeavour and not only a privilege reserved for the developed world. Incentivizing grassroots innovation would be a major step to promote scientific and technological inclusion.