This article has been written by Priscilla Rodrigues, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
Introduction
While various positions have been taken on the subject of the inter-relation of the domains of intellectual property and human rights, not many seem to share a common stand, and where there is an absence of a common stand arises the ground for conflict, more or less the same what many scholars believe human rights and intellectual property are in. On the other hand Conflict can sometimes stem from mere non-observance for a potential of coexistence, which again has been a recurring position by many.
The instruments governing these laws have problems and require inspection, and not mere solutions but a reference to the mechanics of these documents, issues surrounding them has been taken into consideration. The focus has been on all the theoretical as well as corporeal effects the interrelation exudes. The conclusion stands that the view on moral and material rights, when contrasted against the Economic, social and cultural rights, presents a view that the inter-linkage of the two domains requires recognition of human rights of both the creator and the user and elimination of any superiority or hierarchy and drafting legal instruments which bear the potential to withstand both the political and social ideas of the time and future, Also the intersection and consequences related to the two domains need to be viewed in a broader spectrum because damages in long-term sometimes outweigh the un-magnified damages of short-term.
‘‘Intellectual property has the shelf life of a banana’’. – Bill Gates
Human rights and IPR
Human rights in its very essence have existed in this world far longer than the concept of intellectual property or the rights of creation. Human Rights law and Intellectual Property Rights (IPR) on the face of it show no relationship to share as their core constitution are not at all complimentary to each other which is generally regarded as a requisite for things to be interrelated. Since their very beginning, they grew isolated from each other. It was only natural that they never interfered in each other’s domain. The dots were present all along and it is interesting to note that these two separate domains never got along until recently. Before we go along and analyse the potential these two separate fields have in their meeting there is also a need to mention the historical document on human rights. The idea that an idea can be owned and used for violation of the sacrosanct human rights seems but the supposed intersection of human rights and the early
An important Section in the historical document on human rights
- Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- 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.
Article 27(2) is an interesting proposition as the ideas conveyed by the article gives rise to certain uncertainties in its regard such as the protection covering only copyright and not extending to patent, also the question regarding protection provided within the scope of the article only to an individual and not a group, (use of the word author) and even in the broadest sense does it refer to presence of IPR.
The implications of the section depend completely on the interpretation of the words used in the instrument and the two views that may arise are, if the words used in the section limits its indication to IPR or it signifies and hints towards the existence of IPR. The first view can be confirmed if the article is viewed in a narrow and literal manner and with a complete disregard for context while the other becomes easier to conform to if there is a regard for context and a broader definition is adopted.
Traditional approach to the subject of relationship between human rights and IPR
The traditional approach to the subject of this relationship between human rights law and Intellectual property law has been more or less about the conflict and co-existence theory.The first one argues that both domains are fundamentally in conflict with each other and the other argues that no such conflict arises as the mechanisms governing both fields of law are absolutely capable of existing in peaceful harmony. The perspective that the fields were perfectly strangers for quite some time goes out of the window because the moment in history of their meeting lies in the mid 1960’s and 1990’s human rights law’s nominal interest in intellectual property being not very well reciprocated by the intellectual property regime.
IPR treaties reference to human rights
There is no references to human rights appearing in the major intellectual property treaties such as the Paris and Berne conventions or in the more recently adopted TRIPS Agreement of 1995. These treaties do refer to the protections granted to authors and inventors as “rights.” However, the principal justification for these agreements lies not in recognition of rights as being paramount for humanitarian inclination but rather for the mere protection of author and inventor’s interest.
The ICESCR remains one of the human rights instruments which references the safeguarding mechanism of intellectual property.
A perspective on Economic, Social and cultural rights and other variables: a common narrative before the revisit of various legal instruments
Intellectual property is defined or refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. The infringement on the economic, social and cultural sphere of rights is bizarre when viewed in the backdrop of intellectual property and its definition, but it is not a far- fetched concept and has been an area of study for quite some time due to the conflict and coexistence debate.
ESCR regarding human rights concerns the basic social and economic conditions needed to live a life of dignity and freedom, related to work and workers’ rights, social security, health, education, food, water, housing, healthy environment, and culture. These rights have a very broad compass, and the narrow spectrum of moral and material rights of the author, inventor protected by IPR regime makes them likely to intersect at some point to create conflict, its evidence lie in the clamour for abuse of IP rights by the so called ‘Big pharma’ and decreasing access to right to health, most prominent example being the crisis over access to HIV/AIDS medicines (in sub-Saharan African countries in particular).
This incompatibility and rather accepted primacy of ESCR over creation rights fosters and breeds the school of thought which enshrines the principle that human rights and intellectual property rights are in fundamental conflict.
Understanding the external and internal conflicts
One of the major tasks is to identify the types of conflict that may arise and moreover identifying those where human rights don’t play much of a role and won’t come into handy for resolving the conflict hence two sets of conflicts have been identified: external conflicts and internal conflicts. It is an observation that external conflicts lie at the intersection of the human rights and intellectual property regimes while internal conflicts exist only within the human rights regime itself. With respect to external conflicts, it is important to separate the human rights aspects of intellectual property protection from others that have no human rights basis.
Once the human rights attributes of the conflict become separable from conflict, the principle of human rights primacy can be used to resolve the conflicts. The principle being very useful has its own Achilles heel, it does not resolve all conflicts, especially those in areas in which the concerned human right is only vaguely defined and the outlines being not properly defined.
Nexus between IP and Human Rights
The consensus has been that over a period of time international legal communities and various scholars have come to recognize the various links between intellectual property rights and human rights. For example, patent laws recognize that there is a socio-economic dimension to the rights granted and that a balance has to be maintained between the interests of the patent holder and the broader interests of society.
Conflict between IP and human rights
The only catch being that when intellectual property is seen as in conflict with the principles of human rights then the creator or the intellectual property rights holder embeds within him both the creators rights and human rights while the other party having only the later . At the same time, Intellectual property rights also have direct and indirect impacts on the realization of human rights. For example, intellectual property rights include economic and moral elements. The latter can be linked to certain aspects of human rights. Also, human rights treaties recognize certain rights pertaining to science and technology.
It is the recognition of such rights in documents such as the UDHR, which promote the author to claim the moral and material interest on any scientific production which creates the scope for striking a balance between the rights of the creator and that of the society which inclines with their broader interests.
Understanding the approaches involved and the challenges reposed
The academic community on several occasions have discussed the coexistence approach and the most primitive of them relies on elevating intellectual property rights to the status of human rights. This approach has several weaknesses, the first is that there is no recognizable way to achieve international consensus on the rights which have human rights in the light of intellectual property rights.
This is because the task of achieving consensus on documents such as UDHR and ICESCR in itself was a herculean task due to the diversity in various political regimes regarding background, tradition, Philosophy and beliefs, Second being the challenge that Human rights are very generalized principles and are considered to be paramount possession of every man and woman since birth, this type of broad generalization makes it very difficult for any document or instrument to encompass the intellectual property rights of creation, which are not that broad in their essence, within human rights.
The coherent belief within the co-existentialists throughout this debate has been that restrictions placed upon the intellectual regime if not justified in nature would create the opposite of balance and is not at all good either for human rights or intellectual property realm as it would do more damage than repair. Disengaging with the typical view that multinational corporations exploit the patent mechanism and violate the sacrosanct rights of consumers, typically in the medical field, the broader view realizes the fact that market and a typical economic system has to recognize everyone’s right and freedom to participate in a market which does not have distortions and is free of arbitrary government procedures.
The crux of this narrative lies in the fact that a well-functioning national and international market, Directly or indirectly contributes to the increase in the living standards of consumers and people of the society this in turn fulfils the criteria for sustaining economic, social and cultural rights.
Is the patent regime the culprit?
The logic is simple, strong patent regulation directly hit the broader spectrum of human rights.It is very evident in the cases of patent infringement on right to health that pharmaceutical patent protection appeared to be abhorrent with respect to its effect to the general masses, a company able to reverse- engineer modern drugs by foreign companies and selling them at one-tenth the price seem to do more good than harm, in a political driven and so called developing nation such as India this would work like a charm but, only until it is not struck down by a multilateral treaty producing WTO and its major advancement agreement on the international scenario.
The period where no strict pharmaceutical patent regulation was in force in India was the period when India became a hub for exporting medicines to the sub-Saharan countries. This position However changed when India became a signatory to WTO and TRIPS came into force. A recent Incident in India presented a polarized view on pharmaceutical patents and innovations and re-ignited the debate on dynamics and dimensions of money and lives and age-old apprehension on the idea of protecting ideas which may prove to be detrimental to the society at large.
Case law
This case was regarding Novartis’ patent application over a leading leukaemia drug, Gilvec which the Supreme Court rejected. The judgement in itself entails technicalities of patent law, but the real factor to consider here is the generic industry of developing nations such as India gets affected by stringent patent regulations. The inequality stems from the fact that richer countries can afford more to buy medicines which may or may not be life-saving in nature than the populace of developing nations buying drugs of life-saving nature. Stronger patent regulations only foster this ever-present inequality.
Another perspective of the same issue underlines the problem of diminishing thrive for innovation. This problem states that weak protection of intellectual property such as patents creates apprehension for innovation, this is because weak protection of ideas deters creators from innovating at the first place and the question of accessing or reaping benefits of the innovation arises only when there is an innovation at the first place.
A fresh take on the matter of the basic proposition- IPR and human rights is recognizing the roles and functions of the IPR realm and whether they foster or deter an environment in which non-violation of fundamental human rights could take place. IPR fulfils various economic functions rights from copyrights and design supporting creativity and inventiveness to Geographical Indicators and Trademarks role of correcting information asymmetry and hence preventing the consequential confusion.
Rights affected by the IPR regime
- The paper so far has discussed various violations of human rights but there is a need to address the exact rights which are impacted by the IPR regime and relevant legal instruments surrounding it:
- Right to Health- This has been discussed above.
- Right to Food – an effective sui generis system to protect new plant varieties and crop protection, plant biotech products hinder with the right of every global citizen to safe and sustainably developed food for human health and environment.
- Right to participate in cultural life and enjoy the benefits of scientific progress and its application. (article 15 of ICESCR)
The relevant part in Article 15 of ICESCR states:
The States Parties to the present Covenant recognize the right of everyone:
- to take part in cultural life;
- to enjoy the benefits of scientific progress and its applications;
- 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.
- The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
- 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.
The most relevant part of this Article is indicated in 1(c) which states ‘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) which provides for the protection of moral and material interests, as discussed in the beginning of the paper. Thus, while UDHR is legally non-binding as it is a declaration and customary international law, the ICESCR is part of international treaty law and a convention which makes it legally binding in nature for the signatories to comply with.
Tour of the TRIPS
The TRIPS is an international legal agreement between all the member nations of the WTO. It was negotiated at the end of the Uruguay Round of the GATT in 1994 and the WTO is responsible for the administration of TRIPS. The main purpose of TRIPS is to create a level playing field in the world of Intellectual Property for all irrespective of their citizenship. A few countries, mostly developing countries, had shown opposition to TRIPS since they believed that developed countries were interpreting TRIPS in a very narrow manner. This thus led to the Doha declaration which clarified the scope of TRIPS.
TRIPS specify enforcement procedures, remedies and dispute resolution processes for all disputes arising in the field of Intellectual Property across the world that come under the ambit of TRIPS. The main objective of TRIPS is the protection and enforcement of all Intellectual Property Rights.
Conclusion
It is quite evident that the contention regarding conflict or coexistence is not something which can be settled in such a short span of time right after there are clear sides on the topic. The thing which can be removed from the list is the ‘Stranger’ tag. It can be said with utmost sincerity that the interactions these spheres of law have undergone in the past cannot be neglected.
The rights assured by Intellectual property regime has to be either incorporated within the scope of human rights or there is a need for establishing intellectual property rights in such a way that the core constitution of the relevant legal instruments i.e.; ICESCR, TRIPS don’t create conflict with each other and there has to be ways for resolution if conflict occurs which again, the solutions have to be uniform irrespective of nation, region and status.
The gap between the problems, ideas, tradition of the developed and developing countries require a reconsideration. It has to be recognized by the human rights wings that the recognition of intellectual property rights is important if not above in precedence to human rights.
The international IP law and TRIPS agreement in their present state do not contain the sufficient policy space to accommodate various provisions which are required to pursue most if not all human rights objectives and considerations for ideal balance between International IP law and Human rights.
The striking of balance between rights will be the most difficult task because the requisite for striking the perfect balance between the two rights is subject to regional considerations and Economic, social and cultural dynamics.
References
- “Bill Gates Quotes.” BrainyQuote.com. Xplore Inc, 2018. 19 January 2018.
- Art. 27, Universal Declaration of Human Rights (1948).
- Panumas Kudngaongarm, “Human Rights Standards For The Protection of Intellectual Property: Traditional Knowledge and Indigenous Resources (Part II)”, TLJ, 2010, page 3.
- Laurence R. Heifer, “Human Rights and Intellectual Property: Conflict or Coexistence?”, 5 MINN. INTELL. PROP. REV. 47 (2003), http://mipr.umn.edu/archive/v5n1/Helfer.pdf.
- See Paris convention for protection of industrial property, 1883 and Berne Convention for the Protection of Literary and Artistic Works, 1886.
- The International Covenant on Economic, Social and Cultural Rights (ICESCR),1966 adopted by the UN General Assembly, came into force on 3rd January, 1976
- WIPO, “What is Intellectual Property?”, http://www.wipo.int/about-ip/en/.
- Resources, “What are ESCR?”, https://www.escr-net.org/rights.
- Philippe Cullet, “Human Rights and Intellectual Property Protection in the TRIPS Era”, HRQ, 2007, Vol. 29.
- Peter K. Yu, “Ten Common Questions about Intellectual Property and Human Rights”, 23 Ga. St. U. L. Rev. 709 (2007).
- Jayashree Watal, 14th EIPIN congress, Panel discussion on Human rights and International IP law, 7th April, 2013.
- Debadyuti Banerjee, “Interrelationship between IPR and Human Rights”, The Student Journal of Law, 2012, page 2,3, https://sites.google.com/site/349924e64e68f035/issue-4/interrelationship-between-ipr-and-human-rights.
- The Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS), effective from 1st January, 1995.
- Novartis Ag v. Union of India, (2013) 6 SCC 1.
- Swaraj Paul Barooah, what can we learn from the Novartis case? (12th April 2013), http://ohrh.law.ox.ac.uk/what-can-we-learn-from-the-novartis-case/
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