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Human Rights in a Technological Age

The Right to Participate in Science

Rochelle Dreyfuss

It has long been recognized that patent rights are in tension with human rights. The Universal Declaration of Human Right posits that scientific creators are entitled to the protection of the interests resulting from their scientific production. At the same time, it recognizes the right of everyone to share in scientific advancements and the benefits they create. Typically, this tension is framed as a clash between proprietary and access interests, with discrete conflicts resolved nationally by a combination of limitations and exceptions within patent law, and internationally, with flexibilities that give states room to further access interests.

There are, however, several drawbacks to this framing. It tends to limit access to things that others have created for their own purposes, it requires the Global South to rely on the Global North to fulfill its needs, and it creates a something-for-nothing narrative that makes international adjudicators wary of allowing states to enjoy significant flexibilities. This paper argues that the right to “share in scientific advancement” must be re-interpreted as a right to participate in the enterprise of scientific advancement. Recast in this way, the right would invigorate state efforts to enable locals to learn from and build on the work of others, fulfill unmet local demand, and ultimately, innovate at the knowledge frontier. At the international level, recognizing the right to do science as fundamental to human development would open policy space and allow states to do what is needed to become technologically self-reliant in areas crucial to their wellbeing.