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IPR and human rights

August 26, 2024

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This article is written by Gautam Badlani. This article explains the concept of Intellectual Property Rights and human rights along with their importance and significance in todays’ contemporary times. Further, it provides a detailed analysis of the overlapping conflicts between intellectual property rights and human rights.

Table of Contents

Introduction

Intellectual Property Rights (IPR) is one of the most important aspects in today’s advanced and fast-paced world. Individuals, as well as businesses, seek IPR protection for their innovative ideas and works. Various governments across the world have launched several initiatives to boost IPR registrations in their nations. IPR is often termed as a negative right as they prevent individuals from exploiting the innovative works of others.

Human rights are the basic rights that are inalienable (which cannot be taken away) and essential for all living beings. Presently, governments across the world are attempting to strike a delicate balance between the economic aspects of IPR and the ethical aspects of human rights.

Importance of IPR

Intellectual property rights aim to strike a balance between the economic interests of the innovators and the larger interests of society. The underlying principle of IPRs is that the innovators should not only receive recognition for their novel creations, but their right to draw monetary benefits out of such novel inventions should also be safeguarded. IPR rights incentivize the disbursement and publication of information to the public rather than keeping it a secret. The promotion of IPR also boosts the economy and helps create new jobs.

Types of IPR

There are five major forms of IPR protection.

Trademark

A trademark is a sign or symbol which a company uses to distinguish its products or services from those of its competitors. Trademarks may be in the form of a shape, design, symbol, phrase or colour scheme. Trademarks are used to protect a class of goods or services.

The key legislation dealing with trademarks in India is the Trade Marks Act, 1999. It defines a trademark as a mark that is capable of graphical representation and distinguishing goods or services of one entity from those of others.

Patents

A patent is used to protect an invention, which may be a product or a process. The patent gives the patent-holder the exclusive right to exploit the invention economically. One of the essential requirements of a patent is that it must be a novel creation. The Patents Act, 1970 provides that in order to be patentable, an invention must be novel, involve an innovative step and must be capable of industrial application.

Copyright

Copyright is used to protect literary, artistic, dramatic and musical works. It protects tangible creations and is often considered as a bundle of rights as it protects the right to sell, right to reproduce, right to communicate to the public and right to adapt and translate. The Copyright Act, 1957 provides that a copyright is an exclusive right granted to authors in respect of their literary, artistic, dramatic or musical works to perform that work in public, reproduce the work, make copies of the work, make translation of the work or any adaptation of the work.

Trade secret

Trade secrets refer to the confidential information of businesses that are not intended for unauthorised commercial use by others. It often includes business strategies, technical information or manufacturing processes.

In India, there is no specific legislation which deals with trade secrets. However, trade secrets are protected by Section 316 of the Bharatiya Nyaya Sanhita, 2023 which provides a five-year imprisonment for criminal breach of trust under Section 316. Moreover, corporations may also enter into Non-Disclosure Agreements to protect their trade secrets. The trade secrets are also governed by the Indian Contract Act, 1872 under Section 27, which states that parties cannot disclose any confidential information which is contrary to the contract terms (e.g. Non-Disclosure Agreement).

Geographical Indication

Geographical indication is governed by the Geographical Indications of Goods (Registration and Protection) Act,1999. It provides that a geographical indication is an indication which identifies the goods as natural or agricultural goods or goods of a particular geographical origin or goods manufactured in a particular territory. The geographical indication mark is granted in respect of those goods where a particular quality, reputation or other characteristic is attributable to the place of origin of the goods.

Theories of IPR

Some of the key theories of IPR that have developed in the international forum over a period of several years are property rights theory, utilitarian theory, deterrence theory and instrumentalist theory.

Property rights theory

This theory believes that men have the right to own the products of their labour. This gives rise to property ownership. Ownership is defined as a bundle of rights that include several rights, such as the right to use, the right to exclude others, and the right to exploit the product for economic gains. Since intellectual property work is the result of IPR holders’ labour, the registered holder has ownership over the work. This theory also conceptualises that the product of an individual’s labour is actually a manifestation of that individual itself.

Utilitarian theory

This theory provides an alternate perspective to the over-emphasis given on individual benefits by the property rights theory. The utilitarian theory emphasises that the protection afforded by IPR should uplift economic progress along with cultural progress. The IPR acts as a reward for individuals for contributing to the growth of science, art, and technology. This theory focuses on the outcome of the inventions and the impact that it has on the overall welfare of society.

Instrumentalist theory

This theory tries to balance the rights of the IPR holder and the users of the innovation that is protected. It states that the human rights of the users of the protected knowledge should be protected while enforcing the IPR. For example, knowledge related to medicines or climate change should be protected only to the extent that it does not impede the overall good of society.

Ethic and reward theory

This theory provides that IPR is a reward and acknowledgement of the contribution of the creator of the innovative work for contributing something to society. As a part of the reward, others are excluded from using the same work or methodology once it is made publicly available.

Human rights

Human rights, often referred to as natural rights, are the basic rights which every individual is entitled to. These essential rights are entitled to all individuals from birth. The principle of human rights is that everyone is equal in rights and dignity. The concept of human rights gained prominence in the international sphere after the adoption of the Universal Declaration of Human Right, 1948.

Section 2(1)(d) of the Protection of Human Rights Act, 1993 defines human rights as those rights which relate to life, liberty, dignity or equality of individuals and are guaranteed in the Indian Constitution or are incorporated in international covenants which are enforceable by the Indian courts.

The most influential document concerning human rights in contemporary times is the Universal Declaration of Human Rights (UDHR). Article 27.1 of the UDHR states that all people have the right to enjoy the arts and participate in the cultural life of the community. People have a right to share in scientific advancements and developments. However, Article 27.2 states that all people have a right to secure the moral and economic interests resulting from their scientific, literary, and artistic creations. Thus, an overlap between human rights and IPR is apparent upon a bare reading of Article 27 of UDHR.

The International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) provides that all people have a right to an adequate standard of living for themselves and their families. It includes access to adequate food, clothing and shelter. The ICESCR had established cultural and social rights as a part of human rights. However, Article 15 of the ICESCR states that individuals who make specific intellectual contributions to society must be rewarded. Moreover, another drawback of the covenant is that it lacks a comprehensive definition of cultural and social rights.

The Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, 1975 provides that all the states should cooperate in the development of scientific and technological capacities of the developing nations with a view to safeguard the economic and social rights of the people of these nations.

Origin of human rights in India

Human rights in Indian society can be traced back to the days of the Rig Veda. The Rig Veda declared that all human beings are equal and are entitled to dignified and respectful treatment. The Atharva Veda also emphasised this principle. These texts stated that it is the duty of every individual to respect the rights of other individuals. Moreover, the Buddha’s teachings also played a key role in the recognition of human rights in India. King Ashoka, by following the principles enshrined by Buddha, built a welfare state for his subjects.

However, human rights in India were severely curtailed during British rule. The British took away many rights of the Indians. Indians were subject to arbitrary arrests and taxes at the hands of the British Government. We can see that the makers of our Constitution have carefully incorporated many human rights in the Constitution in the form of Fundamental Rights. The right to life and liberty is safeguarded under Article 21 of the Constitution, right to speech and expression is safeguarded under Article 19 of the Constitution and right to equality is guaranteed by Article 14.

Types of human rights

There are various types of human rights such as economic, civil, cultural and political rights.

Civil rights

These include the right to life, liberty and privacy. People have a right to be protected against slavery, torture, arbitrary governance and servitude. No one should be subjected to cruel and inhumane treatment.

Political rights

People have a right to participate in the political processes of their nations. They should be entitled to equality before the law and should have the right to seek judicial redress against any arbitrary detention or arrest. Political rights also include the right to peaceful assembly and freedom of speech and expression.

Economic rights

The state should provide social security, the right to equal pay and the right to form trade unions to all the workers. People should have a right to enjoy an adequate standard of living, food and nutrition.

Cultural rights

Everyone has a right to share in the scientific and technological advancements of the society and to participate in the cultural life of the community. They have a right to protect their moral and material interests arising out of any literary, cultural or artistic work or creation.

Difference between IPR and human rights

Basis of Distinctions	IPR	Human Rights
Definition	Intellectual Property Rights are the rights which are given to a person over his literary, artistic, musical, cinematographic, dramatic or scientific works.	Human rights are the rights which are inherent to all human beings irrespective of their religion, race, gender or nationality.
Coverage	IPR includes the right to use, reproduce, adapt, translate and perform the creative or innovative work over which the IPR protection is obtained.	Human rights include cultural rights, political rights, economic rights and civil rights.
Nature	IPR are negative rights as they prevent other individuals from using or reproducing the works of the IPR holder.	Human rights can be both positive and negative. The positive rights include the right to work, food and nutrition. The state has to take steps to ensure that no person is denied these basic rights. Negative human rights are the right to life and liberty. The state cannot act in an arbitrary manner and infringe the right of others to enjoy a dignified life.

Conflicts between IPR and human rights

After the commencement of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), many conflicts between IPR and human rights came to the forefront. Pharmaceutical patenting and the inflation in the prices of medicines, the patenting of traditional knowledge, the rights of the indigenous people and the increasing prices of food and beverages were some of the few areas where IPR were seen as enabling the breach of human rights.

The conflict between human rights and IPR has largely divided the world into two groups. One group, which is dominated by the industrialised and developed nations, maintains that a strong IPR regime is necessary to encourage growth and development. On the other hand, developing nations contest strong IPR laws on three grounds. Firstly, they argue that the benefits of IPR laws are long-term, but in the short term, they raise the cost of development. Secondly, very few countries have the infrastructure to support a strong IPR regime. Thirdly, most of the patents are secured by developed countries, and a strong IPR regime will serve the interests of the developed nations at the cost of the standard of living of the common men in developing countries.

Resolution of the conflict

In order to resolve the conflicts between human rights and various IPR laws, the international community has evolved a number of mechanisms such as compulsory licensing and the fair use doctrine. These help in striking a balance between IPR and human rights and prevent potential overlapping.

Compulsory licensing

Under the compulsory licence system, the government can authorise a licensee to use or manufacture a patented product without the patent holder’s consent upon the payment of a predetermined fee to the patent holder. This provision is often used by governments to authorise the production of life-saving drugs, where the patent-holders attempt to maximise their profits by restricting the production or are hesitant to grant licences even when they are unable to meet the market demand.

Article 31 of the TRIPS Agreement envisages the right of the member countries to grant compulsory licences. Article 8 of the TRIPS Agreement provides that states should give due concern to public health while framing laws relating to patents. Section 84 of the Patent Act, 1970, deals with the compulsory licensing of patents.

Compulsory licensing is opposed by the pharmaceutical companies on two grounds. Firstly, these companies spend huge amounts on research and development and are able to manufacture new and effective drugs. If compulsory licences are issued for these drugs, this would undermine innovation as the companies will not be adequately compensated for the costs incurred in research. Secondly, if a rival competitor is allowed to manufacture the drug, then it may reverse engineer the drug and determine its formulae, which will further scuffle competition in the industry.

The developing countries had heavily lobbied for relaxation in the strict norms of the TRIPS Agreement during the Doha Conference of 2001. The arguments of the developing countries were largely related to the rights of poor people who are unable to buy expensive medicines. Ultimately, the Doha Conference resulted in major relaxations and flexibilities in the issuance of compulsory licences.

Fair use doctrine

The fair use doctrine permits limited use of a copyrighted work without the requirement of obtaining the prior permission of the copyright holder. It is through this doctrine that copyrighted work can be used for the purposes of education even without the consent of the copyright holder. Article 26 of the UDHR declares that all individuals have a right to receive education. Thus, the fair use doctrine can be used for reproducing copyrighted material for non-commercial educational purposes.

Emergency

Many countries have enacted laws that allow the government to override patents under certain public emergency circumstances. For instance, Chapter 17 of the Patent Act, 1990 in Australia authorises the Australian government to override patented innovations for Crown purposes. Similarly, in Canada, the government can sell and use patented products in order to deal with public health emergencies.

Impact of IPR on human rights

IPR laws aim to strike a balance between the rights of the IPR holder and the interests of the larger society. Thus, there are several intersections between human rights and IPR. For instance, in the field of medical technology, on the one hand, there is a need to ensure the cost-effective availability of medicines, and on the other hand, there is a need to reward the companies that spend huge amounts of money in developing new life-saving medicines.

Human rights and patent law

Patent law and health

Many pharmaceutical companies secure patent rights over life-saving medicines and drugs. Through patent protection, they gain control over the manufacture and production of the medicines and are thus able to dictate the market prices of the medicines. In many cases, the prices of life-saving drugs are inflated beyond the reach of the common man, and thus, governments are called upon to check the patent-induced dominance of pharmaceutical companies.

The World Trade Organization (WTO), in its Declaration on the TRIPS agreement and public health, pointed out that the TRIPS Agreement should be interpreted and implemented in consonance with the right of the member countries to protect public health and promote access to medicines. The WTO further declared that in order to protect public health, all member states reserve the right to issue compulsory licences.

Indian context

In India, the right to health is a fundamental right which is protected under Article 21 of the Constitution. Moreover, Article 39 states that the State should take steps to encourage that all citizens have an equal right to adequate means of livelihood and that the material resources of the community are distributed in a manner to ensure the common good. Article 47 of the Constitution provides that the raising of the standard of living and public health shall be among the primary duties of the state.

Thus, the state is under a constitutional obligation to safeguard public health. At the same time, the Patent Act, 1970, allows the patenting of pharmaceutical inventions. Many human rights experts believe that strict patent rules could place essential medicines beyond the reach of the common man due to skyrocketing prices.

In the landmark case of Bayer Corporation vs. Union of India (2014), the Bombay High Court had pointed out that patents should not be used as an instrument to impede public health and medicines should be made available to the public at reasonably affordable prices.

Gene patenting

Gene patenting is another issue in which there is an apparent conflict between IPR and human rights. Those who advocate for the patentability of genes argue that the patenting of genes will help foster and advance research in this field.

On the other hand, some people believe that genes represent human dignity, and permitting their patenting will be a violation of human rights. Moreover, gene patenting implies the use of human beings as commodities. Genes are considered to be a common heritage, and no person or corporation can claim a monopoly over them. If gene commercialization is permitted, then it will deter scientists from sharing data within the community, which would hinder the advancement of medical sciences.

The concept of gene patenting was affirmed by the US Supreme Court in the landmark case of Diamond vs. Chakrabarty (1980), in which the court held that a genetically developed bacteria which is capable of cleaning oil spills by degradation of crude oil was patentable. The court held that while nature in its natural state cannot be patented, goods that have been transformed from their natural state through any human intervention can be patented.

Gene patenting is often opposed on the grounds that genes are part of the common heritage of humanity. On the other hand, supporters of gene patentability argue that genes are like any other tangible property and, thus, should be patentable. This line of argument follows that all tangible objects have a natural form as their physical basis, and if their natural form can be patented, then genes should also be patentable in their natural form. They also advocate for an experimental exemption to gene patents in order to resolve the disputes and issues arising out of gene patentability. A religious critique of gene patentability is that patenting would reduce genes to commodities whose value will be determined on the basis of commercial considerations.

Indian status

In India, Section 3 of the Patents Act prohibits the patenting of natural occurrences, whether in living organisms or non-living substances. This Section also prohibits the patenting of plants or animals. Since the patent law exempts only plants and animals as a whole, the question about the patentability of genes was left unclear.

In India, genes can be patented if they are novel and non-obvious. An invention is said to be novel if it has not been published anywhere else. In the case of genes, an invention is considered to be obvious if it is motivated by any prior discovery or a prior invention or knowledge that aided the creation of the new biotechnological invention.

IPR and indigenous rights

At the international level, it has been recognized that the protection of the traditional knowledge of indigenous communities is an issue that needs to be addressed. However, a global consensus on this issue is yet to be reached.

In many cases, large corporations have sought patents for inventions based on traditional knowledge. Thus, they attempt to reap profits from the efforts of the indigenous communities. The corporations do not provide a share of the profit to the indigenous people.

Many countries have enacted domestic legislation to protect the knowledge of their indigenous communities. For example, Peru’s Law 27811 provides for the collection and registration of the traditional knowledge of the indigenous communities.

Human rights and copyright law

Copyright laws also have a significant impact on human rights. Copyright laws can affect the availability of scholarly data for students and the knowledge of the indigenous communities.

Copyrights and education

Copyright laws can have a significant impact on the availability of research data and material for educational purposes. Many academic journals are beyond the reach of the common man because they are highly expensive. Corporations often obtain copyright over scholarly work, and this has the effect of inflating the prices of the work.

Human rights and trade mark law

Trademark legislation has also been influenced by human rights concerns. Under Indian trademark law, any mark can be registered as a trademark if it has a distinctive character. The name of a person may also be registered as a trademark. The Trade Marks Act, unlike the Trade and Merchandise Act of 1958, does not prohibit the registration of a name as a trademark.

However, in some cases, the Trademark Registry may refuse to register a name as a trade mark, particularly if it is a famous name or is similar to the name of a celebrity. Moreover, in other countries, such as the UK, the registry has, in some cases, refused to permit celebrities to register their name as a trademark.

However, the refusal to permit the registration of a name as a trademark may be challenged from the perspective of human rights. Article 1 of the First Protocol of the European Convention of Human Rights, 1950, provides that every natural person has a right to have peaceful enjoyment of his possessions. A person’s name also qualifies as a possession, and refusal to register the name as a trade mark may be deemed as the denial of the right to peaceful enjoyment of one’s possessions.

Conclusion

Corporations across the world are spending huge chunks of money on research and development. The number of IPR applications is also increasing at a drastic rate worldwide. With the development of technology, there will be more areas of potential conflict between human rights and IPR in the future. The rights of the farmers and the indigenous people should be included within the definition of social and cultural rights and should be embodied within the domain of ICECSR.

In order to strike a balance between the commercial interests protected by IPR and the ethical concerns embodied in human rights, various doctrines and principles have evolved within the legal jurisprudence. These provisions aim to safeguard the common good from the potential exploitation by IPR holders.

However, a generic resistance at the international level is apparent on the issue of widening the scope of human rights. This is primarily due to the fact that rights involve a reciprocal duty, and in the case of human rights, the reciprocal duty falls on the state. The states are reluctant to widen the scope of their obligations.

Frequently Asked Questions

Are genes a part of common heritage?

The patenting of genes is often opposed on the ground that it is a part of the common heritage of the entire human race. The UNESCO Declaration on the Protection of the Human Genome and Human Rights has stated that the human genome represents the underlying unity of all human beings and also recognizes their inherent diversity. Thus, it is a part of the common heritage of humanity. Moreover, it also states that the human genome, in its natural state, should not be made an instrument of financial gains.

What happens if a nation violates the terms of the TRIPS Agreement?

If a nation is found violating the terms of the TRIPS Agreement, then other nations can file a complaint with the WTO, which will put in motion the dispute settlement system of the WTO. Thereafter, the WTO panels and the appellate body will issue rulings to the defaulting nations, and failure to comply with these rulings may result in trade sanctions.