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Thailand Law Journal 2009 Spring Issue 1 Volume 12

The comments above, however, overlook the following points:

1. Article 27(2) refers to the word author, and has been applied to copyright protection.40 In fact, it also includes patent. Article 27(2) mentions ‘the protection of the moral and material interests resulting from any scientific, literary or artistic production’, thus, the protection of material resulting from scientific production could be any tangible thing that may be patentable. Interpretation theory for an international instrument not only looks at the meaning of word but also the whole context of the article and its preamble.41 Therefore, the meaning of author in this sentence is not limited only to author in the concept of copyright, but can be applied to patent as well. The material resulting from scientific production can be patented if it is compatible with the regime of intellectual property laws. In this case, Peter-Tobias Stoll and Anja von Hahn, also accept this issue by using the word ‘author or inventor.’

2. Article 27(2) refers to individual rights, but Article 27(1) mentions ‘the right to participate in culture life of the community’. In some cases, there is an inextricable link between individual and community rights. In fact, this Article is not meant to protect community or group rights. As this Article protects individual rights, there is no reason to refuse the protection of group or community rights as well.

3. Even though, the words traditional knowledge and indigenous resources are not explicitly mentioned in Article 27(2), it does not mean that protection could not be made. The meaning of the whole context is to protect traditional knowledge and indigenous resources.

4. The protection in this Article leads to the conclusion that existing intellectual property laws provide adequate protection for traditional knowledge and indigenous resources if a broader definition is understood. The wording ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ means the protection of intellectual property.42

Thus the concept of intellectual property protection has been in existence in the UDHR since 1948. Although the theme of the UDHR is not directly aimed at protecting intellectual property for traditional knowledge and indigenous resources, at least it is a strong support for the protection of traditional knowledge and indigenous resources in other international frameworks.

B The International Covenant on Economic, Social and Cultural Rights (ICESCR)
The ICESCR is one of the human rights instruments relevant to the protection of intellectual property.  The relevant part in Article 15 states:

  1. The States Parties to the present Covenant recognize the right of everyone:
  2. to take part in cultural life;
  3. to enjoy the benefits of scientific progress and its applications;
  4. to benefit from the protection of the moral and material interests resulting from and scientific, literary or artistic production of which he is author.

The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

  1. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
  2. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contracts and co-operation in the scientific and cultural fields.43

The most relevant part of this Article is indicated in 1(C) ‘to benefit from the protection of the moral and material interests resulting from and scientific, literary or artistic production of which he is author.’  It is similar to the UDHR Article 27 (2) for the protection of moral and material interests. Thus, while UDHR is legally non-binding and customary international law, the ICESCR is part of international treaty law.44

C The International Covenant on Civil and Political Rights (ICCPR)
The ICCPR is one of the significant human rights instruments particularly in the context of traditional knowledge and indigenous resources. The relevant provision is Article 27:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.45

This article mentions the rights to ‘minorities’ who live in states. Minorities could mean indigenous peoples and local communities. Peoples who live in states, whatever they are called (minorities, indigenous peoples or local communities), deserve the fundamental rights of being a member of the world’s society.

It is strongly believed that this article of the ICCPR reflects the rights and protection of traditional knowledge. In addition, Article 1(2) and Article 47 of the ICCPR state:

Article 1(2)
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.46

Article 47
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.47

40. Stoll and Hahn, above n 25 of Part I, 18. Because the term ‘author’ is used in copyright law and the use of ‘scientific, literary or artistic’ works or productions are also terms commonly used in copy law.

41. In applying the customary rules of interpretation of public international law, each provision of the Convention, Declaration or Agreement shall be read in the light of its objectives and principles. For more detail see the 1969 Vienna Convention on the Law of Treaties, Interpretation of Treaties, Article 31-33.

42. Compare with the 1886 Berne Convention for the Protection of Literary and Artistic Works. For more details please read Sam Ricketson and Megan Richardson, Intellectual Property: Cases, Materials and Commentary (Third edition, 2005) 1.3, 9.42. See also Wikipedia, the free encyclopedia (2007) < http://en.wikipedia.org/wiki/Paris_Convention_for_the_Protection_of_Industrial_Property> at 27 January 2007.

43. P.R. Ghandhi, above n 38, 85. See also Stoll and Hahn, above n 25, 17-8. See also International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted and opened for signature of 16 December 1966, by General Assembly resolution 2200A (XXI), art.15 (entered into force 3 January 1976). Available at <http://www.unhchr.ch/html/menu3/b/a_cescr.htm> at 26 January 2007.

44. Stoll and Hahn, above n 25, 18.

45. P.R. Ghandhi, above n 38, 70. See also Stoll and Hahn, above n 25 of Part I, 19-20. and   International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession of 16 December 1966, by General Assembly resolution 2200A (XXI), art. 27 (entered into force 23 March 1976). Available at < http://www.ohchr.org/english/law/ccpr.htm> at  26 January 2007.

46. Article 1(2) of the ICESCR is also codified the same as Article 1(2) of the ICCPR. See Stoll and Hahn, above n 25 of Part I, 19.

47. International Covenant on Civil and Political Rights (ICCPR), Article 47. See also Article 25 of the ICESCR stated in the same words. See Stoll and Hahn, above n 25 of Part I, 19.

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.

 

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