The Empowering Role of Copyright in Realizing the Right to Health

Professor Steven D. JamarHoward University School of Law

International Director, Institute for Intellectual Property and Social Justice

© 2013 Steven D. Jamar (no copyright claimed in images or videos)

Prior PanelsAll those prior panels –

IHR to Health and Patents

IHR to Access to Information and IP

IHR to Beneficial Participation in Society and

Science

Just introductions to my talk.

IHR Definition“a claim, interest, need, or demand

which is cognizable under law and which proceeds from moral precepts necessary for respect for human dignity”

Prof. Goler Teal Butcher

Progressive Realization:Role of Information and

KnowledgeInformational aspects of the IHR to Health are

central to progressive realization of healthKnowledge of health-influencing factors

EnvironmentSafe work conditionsDietHygiene

Knowledge by health care providersKnowledge of options for health care

IHR to Health ICESCR Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. 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: (a) The provision for the reduction of the stillbirth-rate and of infant

mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial

hygiene; (c) The prevention, treatment and control of epidemic, endemic,

occupational and other diseases; (d) The creation of conditions which would assure to all medical service

and medical attention in the event of sickness.

IHR Access to Information ICCPR Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

IHR Science and IP Article 15

1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. 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.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

IHRNegative – stop it or don’t do that

Affirmative – do something

Progressive realization

Enforceability

Political advocacy

Concepts Threaded Together

Social Justice

Inclusion

Empowerment

IHR to Health

Especially informational aspects

Copyright

Social JusticeInclusion

Especially of those marginalizedAny scale – within a country; within the world

community; within any particular group

EmpowermentProviding environment (social, economic, cultural,

political, physical) appropriate to entrepreneurial efforts of all sorts

Provide access to information needed for action

CopyrightDoes not protect ideas

Protects the expression of those ideas

Can be an engine or brake on development

FormsText: Pamphlets, books, websitesAV works: Films, videos, youtube Graphic works: Posters, charts, comics, illustrationsAudio: Music, audio text (radio, internet, whatever)

© for Health

© for Health–LinksWeb MD http://www.webmd.com

Youtubehttp://www.youtube.com/watch?v=mYsJqvJUMs8

Health care in South Africa – wikipediahttp://en.wikipedia.org/wiki/Healthcare_in_South_Africa

Information Connections

Information and Inclusion and Empowerment

Information and Copyright

Information and Health

Aside: Internet Access as IHR

IHR and Internet aspects InformationCommunicationParticipationBlocking problem

Copyright aspect – guise of protecting copyright used to censor (Peter Yu has explored this)

Information and Social Justice–Inclusion

Inclusion

“What’s going on?”Let me in!

Information and Social Justice–Empowerment

EmpowermentInformation is

power

Social Justice PerspectiveInclusion and empowerment perspectives can

inform the shape of an IP regime

Inclusion and empowerment are tied directly to IHR

IP – protect those in power

or

IP – empower everyone

Empowerment and Information

Empowerment for your own health

Empowerment to get into the business of health care (domain knowledge; knowledge of how to get into it)

Empowerment to include and empower others

Copyright, Information, Health, Empowerment

Creation of copyrighted works to distributeWho pays?Who creates?

Distribution of copyrighted worksWho pays? Who does it? How is it done?

Control of content

Central control vs.

Government Roles: Info, IP, IHR Health

Create Pay for creation of materials to distribute Create incentives for others to create (IP)

Distribute Pay for distribution Create incentives for others to distribute (IP) Regulate distribution (compulsory licensing; regulated

compensation)

Target various groups, especially marginalized ones

Danger Big Brother vs. Independence http://www.youtube.com/watch?v=HhsWzJo2sN4

Lawyering ApproachLocal conditions

Problem solving

Not one-size-fits-all

Levels of workStandards-setting Information disseminationRegional (interstate; continental)NationalLocal

ConclusionSocial Justice

InclusionEmpowerment

Provides useful perspective for thinking of IHR and IPNot IP as IHRNot IHR as limit on IPBut IP and IHR engaged in common endeavor