E/C.12/GC/17
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concerned and the oral or other customary forms of transmission of scientific, literary or artistic
production; where appropriate, they should provide for the collective administration by
indigenous peoples of the benefits derived from their productions.
33.
States parties in which ethnic, religious or linguistic minorities exist are under an
obligation to protect the moral and material interests of authors belonging to these minorities
through special measures to preserve the distinctive character of minority cultures.22
34.
The obligation to fulfil (provide) requires States parties to provide administrative, judicial
or other appropriate remedies in order to enable authors to claim the moral and material interests
resulting from their scientific, literary or artistic productions and to seek and obtain effective
redress in cases of violation of these interests.23 States parties are also required to fulfil
(facilitate) the right in article 15, paragraph 1 (c), e.g. by taking financial and other positive
measures which facilitate the formation of professional and other associations representing the
moral and material interests of authors, including disadvantaged and marginalized authors, in
line with article 8, paragraph 1 (a), of the Covenant.24 The obligation to fulfil (promote) requires
States parties to ensure the right of authors of scientific, literary and artistic productions to take
part in the conduct of public affairs and in any significant decision-making processes that have
an impact on their rights and legitimate interests, and to consult these individuals or groups or
their elected representatives prior to the adoption of any significant decisions affecting their
rights under article 15, paragraph 1 (c).25
Related obligations
35.
The right of authors to benefit from the protection of the moral and material interests
resulting from their scientific, literary and artistic productions cannot be isolated from the other
rights recognized in the Covenant. States parties are therefore obliged to strike an adequate
balance between their obligations under article 15, paragraph 1 (c), on one hand, and under the
other provisions of the Covenant, on the other hand, with a view to promoting and protecting the
full range of rights guaranteed in the Covenant. In striking this balance, the private interests of
authors should not be unduly favoured and the public interest in enjoying broad access to their
productions should be given due consideration.26 States parties should therefore ensure that their
legal or other regimes for the protection of the moral and material interests resulting from one’s
scientific, literary or artistic productions constitute no impediment to their ability to comply with
their core obligations in relation to the rights to food, health and education, as well as to take part
in cultural life and to enjoy the benefits of scientific progress and its applications, or any other
right enshrined in the Covenant.27 Ultimately, intellectual property is a social product and has a
social function.28 States parties thus have a duty to prevent unreasonably high costs for access to
essential medicines, plant seeds or other means of food production, or for schoolbooks and
learning materials, from undermining the rights of large segments of the population to health,
food and education. Moreover, States parties should prevent the use of scientific and technical
progress for purposes contrary to human rights and dignity, including the rights to life, health
and privacy, e.g. by excluding inventions from patentability whenever their commercialization
would jeopardize the full realization of these rights.29 States parties should, in particular,
consider to what extent the patenting of the human body and its parts would affect their
obligations under the Covenant or under other relevant international human rights instruments.30