E/C.12/GC/17
page 2
I. INTRODUCTION AND BASIC PREMISES
1.
The right of everyone to benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he or she is the author is a
human right, which derives from the inherent dignity and worth of all persons. This fact
distinguishes article 15, paragraph 1 (c), and other human rights from most legal entitlements
recognized in intellectual property systems. Human rights are fundamental, inalienable and
universal entitlements belonging to individuals and, under certain circumstances, groups of
individuals and communities. Human rights are fundamental as they are inherent to the human
person as such, whereas intellectual property rights are first and foremost means by which States
seek to provide incentives for inventiveness and creativity, encourage the dissemination of
creative and innovative productions, as well as the development of cultural identities, and
preserve the integrity of scientific, literary and artistic productions for the benefit of society as a
whole.
2.
In contrast to human rights, intellectual property rights are generally of a temporary
nature, and can be revoked, licensed or assigned to someone else. While under most intellectual
property systems, intellectual property rights, often with the exception of moral rights, may be
allocated, limited in time and scope, traded, amended and even forfeited, human rights are
timeless expressions of fundamental entitlements of the human person. Whereas the human right
to benefit from the protection of the moral and material interests resulting from one’s scientific,
literary and artistic productions safeguards the personal link between authors and their creations
and between peoples, communities, or other groups and their collective cultural heritage, as well
as their basic material interests which are necessary to enable authors to enjoy an adequate
standard of living, intellectual property regimes primarily protect business and corporate
interests and investments. Moreover, the scope of protection of the moral and material interests
of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what
is referred to as intellectual property rights under national legislation or international
agreements.1
3.
It is therefore important not to equate intellectual property rights with the human right
recognized in article 15, paragraph 1 (c). The human right to benefit from the protection of the
moral and material interests of the author is recognized in a number of international instruments.
In identical language, article 27, paragraph 2, of the Universal Declaration of Human Rights
provides: “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.” Similarly, this right
is recognized in regional human rights instruments, such as article 13, paragraph 2, of the
American Declaration of the Rights and Duties of Man of 1948, article 14, paragraph 1 (c), of
the Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights of 1988 (“Protocol of San Salvador”) and, albeit not explicitly, in
article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and
Fundamental Freedoms of 1952 (European Convention on Human Rights).
4.
The right to benefit from the protection of the moral and material interests resulting from
one’s scientific, literary and artistic productions seeks to encourage the active contribution of
creators to the arts and sciences and to the progress of society as a whole. As such, it is
intrinsically linked to the other rights recognized in article 15 of the Covenant, i.e. the right to