Intellectual Property Rights and Human Rights

Shayani Sarkar

West Bengal National University of Juridical Sciences.

PGDHR(1713).
Abstract

“The relationship between Intellectual Property rights and Human rights has debated greatly . In this
aspect two opposing views have been proposed . The first view maintains that Intellectual property
law and human rights law are in fundamental conflict since the legal protection of individually held
Intellectually property rights is considered to be incompatible with communally based human rights .
In other words according to this view human rights are perceived as a countervailing force against
intellectual Property rights. The second view holds that intellectual property rights law and human
rights law are compatible since they pursue the same aim . In other words ,human rights law is seen
as the fundamental of intellectual property law.”(Reference—Edward Elgard,C Intellectual Property
and Human rights a paradox, Centre for Intellectual Property law edited by William Groeshide),

My paper focuses on the relation between Intellectual Property rights and Human Rights . The
paper focuses on the importance on the evaluation of Intellectual Property rights ,significance of the
Paris and Berne Convention , Relevance of The Status of Anne Act 1710, TRIPS Agreement .The paper
also focuses on the Relationship between Intellectual Property rights and traditional knowledge,
relationship between Intellectual Property rights and the rights to health , relationship between
Intellectual Property rights and the right to food ,relationship between Intellectual Property rights
and Patent law and comparison and contract between Intellectual property rights and human rights.
Definition of Intellectual Property Rights.

Intellectual Property rights can be defined as “rights of exploitation in information . “ Intellectual

Property rights can be used to refer to a group of legal regimes which confers right to ownership in
any matter . Some examples of intellectual property rights can be copyrights , patents , designs,
trademarks, inventions , literary works , artistic works etc.

Historical Development of Intellectual Property rights law

The development of intellectual property rights can be originated into 4 categories 1) Territorial
Period 2) International Period 3) Global Period 4) Post Trips Agreement

Territorial Period

In this period the concept of Intellectual Property rights originated in different parts of Europe . The
Venetians invented the first patent law In 1474. US Enacted the first patent law in 1790.France
recognized the rights of Inventors in 1791. The system of giving recognition to trademarks were
successfull in the second half of the 19 century . The system of “trade mark registration under
Intellectual Property rights “made their appearance in Europe , England 1862 and 1875, France
1857,Germany 1874,USA 1870 and 1876.

One key characteristic of the the territorial period is that at this period “intellectual property rights
do not extend beyond the territory of the sovereign . The principle of territoriality meant that
intellectual property rights of country A did not apply in country B.
International Period

1) This period was based on the principle of international cooperation. The development of

intellectual property rights was manifested them in the form of bilateral agreements. During

the problem of territorial period there were problems in the concept of free trade . In this

period the concept of free period and bilateral agreements began to emerge. In 1844 the

concept of bilateral agreement began to developed between UK and other European states

. During the territorial period The US Copyright act of 1790 was only applicable to the

citizens of USA. After the second world war the US copyright act began to take international

dimensions. The concept of bilateral treaties was also extended to industrial property rights.

In 1883 69 International agreements took place in Intellectual property rights.The Paris and

Berne Convention also reflected on the need for bilateral treaties In International

agreements. (Reference - WIPO , Office of the United Nations high

commissioner of human rights, Intellectual Property and Human

rights.

Signifance of the Paris Convention

 “The convention provided that Under the provisions on national

treatment, the Convention provides that, as regards the protection of
industrial property, each Contracting State must grant the same protection
to nationals of other Contracting States that it grants to its own nationals.
Nationals of non-Contracting States are also entitled to national treatment
under the Convention if they are domiciled or have a real and effective
industrial or commercial establishment in a Contracting State.
Patents granted in different Contracting States for the same invention
are independent of each other: the granting of a patent in one
Contracting State does not oblige other Contracting States to grant a
patent; a patent cannot be refused, annulled or terminated in any
Contracting State on the ground that it has been refused or annulled or has
terminated in any other Contracting State
 Industrial Designs. Industrial designs must be protected in each
Contracting State, and protection may not be forfeited on the ground that
articles incorporating the design are not manufactured in that State.
Unfair competition. Each Contracting State must provide for effective
protection against unfair competition.”

protection of literary and artistic works. The significance of the Berne

Convention lies in the fact that it was established mainly for the purposes of
copyright law , members of Berne Union were asked to establish minimum
standards of copyright law. The convention gave importance to the concept of
“country of origin.”According to the term when a work is published in any
country which is a member of Berne Union then that country is a country of
origin . However, under Article 5(4), when a work is published simultaneously
in several party c ountries (under Article 3(4), "simultaneously" is defined as
"within 30 days"[3]), the country with the shortest term of protection is defined
as the country of origin],.If a work is published in simultaneously many
countries out of which some countries are members of the Berne Convention
then the member country will be a country of origin.

“However both the Paris and Berne Convention were silent on human rights .
This is understandable in retrospect , since at the time of establishment of these
treaties understanding human rights were not an issue . However later adaptions
do not refer to them either , which raises the question whether those concerned
with keeping the international intellectual proper law up to date ever thought on
relying on human rights law for that aim . For a positive answer to that question
Berne Convention member states in 1986 asserting that copyright is based on
human rights and justice and that authors as creators of beauty , entertainment
and learning , deserve that their rights be created and effectively protected both
in their country and in all other countries of origin.”( Reference – Intellectual
Property rights and human rights a paradox , edited by William
Groeshide.”

Relevance of the Statute of Anna Act , 1710

The Statute of Anna Act was passed in Britain . n Act for the Encouragement
of Learning, by vesting the Copies of Printed Books in the Authors or
purchasers of such Copies, during the Times therein mentioned. Named
after Anne, Queen of Great Britain, this was the first copyright statute in
the Kingdom of Great Britain, and the first full-fledged copyright statute in
the world. It was enacted in the regional year 1709 to 1710, and entered into
force on April 10, 1710.

The Statute then continued by stating the nature of copyright. The right granted
was the right to copy; to have sole control over the printing and reprinting of
books, with no provision to benefit the owner of this right after the sale.[47] This
right, previously held by the Stationers' Company's members, would
automatically be given to the author as soon as it was published, although they
had the ability to license these rights to another person. The copyright could be
gained through two stages; first, the registration of the book's publication with
the Company, to prevent unintentional infringement, and second, the deposit of
copies of the book at the Stationers' Company, the royal library and various
universities. One restriction on copyright was a "cumbersome system" designed
to prohibit unreasonably high prices for books, which limited how much authors
could charge for copies.[48] There was also a prohibition on importing foreign
works, with exceptions made for Latin and Greek classics. ( Reference –
Wikipedia , Statute of Anne ,
https://en.wikipedia.org/wiki/Statute_of_Anne)

The objective of this act was

Encouragement of learning

Compulsory sharing of books in public universities

Price regulation.

Copyright Law

Under the provision of Copyright law all works under copyright law specially
literary and artistic works are protected 50 years after authors death. However
after 50 years the work is made available to the public .
Relationship between Intellectual Property rights and Traditional
Knowledge

“ Traditional Knowledge is defined as a body of knowledge built by a group of

people through generations living in close contact with nature . Contrary to
popular belief , Traditional Knowledge is not static and unchanging but rathers
develops over time. Traditional Knowledge in the broader sense of the term
extends to traditional cultural expressions , Traditional Knowledge in any event
serves as a means of cultural identification and thus may be understood
holistically as both its spiritual and practical elements serve to integrate a
community within its environment .The WIPO ( World Intellectual Property
organization Inter governmental committee on Genetic resources Traditional
Knowledge and Traditional Cultural expressions has developed 2 sets of draft
provisions one for Traditional Knowledge and other for Traditional Cultural
expressions , The Inter governmental committee recognizes that for many
committees these are closely related even integral aspects of respect for and
protection of their cultural and Intellectual Heritage .The need to address
concerns of Traditional Knowledge In Intellectual Property rights is urgent as
Traditional Knowledge is currently threatened by a number of forces including
loss of indigenous land rights , poverty and the standardising effect of
globalization

( Reference – Center for Intellectual Property law , Edward Elgar

Intellectual Property and Human rights , a paradox edited by William
Grosheide).

Evolution of Intellectual Property Rights in India

During the global period the Stockholm protocol of 1967 was adopted.The main
aim of the protocol was to give “developing countries greater access to
copyright materials . During this time period India price of indigenous
medicines has shot up by leaps and bounds . The reason being that indigenous
medicines were not easily available to the public.Hence India had to depend on
foreign countries for the medicines that they needed . Justice Rajagopala
Ayanngar suggesting changing the Patent law In India to reduce the prices of
medicines so that it can reach the lowest strata of society.The Patent act of 1970
was invented.

TRIPS Agreement

The preamble of TRIPS agreement recognizes the fact that“recognizing that

intellectual property rights are private rights and recognizes the underlying
public policy objectives of national systems for the protection of intellectual
property, including developmental and technological objectives

“ An investigation over years into human rights treaties in the catalogue of

international intellectual property rights insights directly lead us to TRIPS .The
reference to human rights can be found in the preamble of TRIPS if one is
prepared to accept Intellectual Property rights as a sub category of property
right

Relationship between Intellectual Property rights and Human rights

“ The relationship between intellectual property rights and human rights share a
common origin . Both stem from Western European societal development
starting from the 19 if not already in the 18 century . The indicated societal
developments were of 3 kinds . The first was the rapid industrialisation and
economic growth which affected countries unevenly and that was underpinned
by a large extent to scientific , technological and cultural innovations . The
second was a growing divide between the countries affected by these trends
and the third was a sustained expression of international commerce that was left
outside of these developments . The third was a sustained expression of
international commerce that were promoted by economically dominant
countries .Not only intellectual property rights and human rights have a related
origin . but the same can be said of their development particularly during the
twentieth century as during the UDHR (1948) and the TRIPS agreement
(1994).(Reference – Intellectual Property rights and human rights a
paradox edited by William Grosheide).

Since the adoption of the TRIPS agreement the relationship between Intellectual
Property rights and human rights has been a matter of great debate .” The crisis
concerning access to HIV /AIDS drugs has brought the link between Human
Rights to the forefront “. The relationship between intellectual Property rights
and human rights can be summarised as
“On the one hand, the right to freely participate in the cultural life of the
community and to share in the scientific advancement and its benefits is
guaranteed. And on the other, the right to protection of the moral and material
interests flowing from the results of IP production is ensured.

Link between Human Rights and Intellectual Property rights in ESCR (

Economic social and cultural rights covenenant ).

“Article 15 ( 1) of ESCR covenant recognize the right of everyone to

a) Take part in cultural life
b)Enjoy the benefit of scientific progress and its applicationsc)Benefit
from the protection of the moral and material interest resulting from any
scientific , literary or artistic production of which he is the
author.Provision b and provision c can be interpreted in both national and
international dimensions .At a national level provision b makes it
mandatory for the government to ensure that everyone have access to
technologies that contribute to the fulfilment of human rights .At an
International level provision b implies that “everyone in all countries
shall be able to benefit from the latest scientific advances . The
interpretation of provision b of article 15(1) in both national and
international level are rights based implying on the connection between
Intellectual Property rights and human rights.Further the concept of
human rights is linked in the concept of Intellectual Property rights . The
concept of Intellectual Property rights is “materialized in most legal
system around the world on the premise that there must be a balance
between the rights granted to the property rights holder and societys
interest in having access to novel developments in arts , science and
technology.”However one major limitation of the concept of intellectual
property rights is that it gives public only the right to benefit from artistic
or technological advances while ignoring the right of everyone to benefit
from scientific or individual progress.Further analysis of article 15 (1)
OF ESCR and further connections between intellectual property rights
and human rights can be analysed by two cases of Constitutions of India
and South Africa. Indian constitution analysed the right to property in the
context of fundamental rights . However after the constitutional
amendment in 1970 right to property is not a fundamental right . The
Indian constitution provided for a balance between “ rights which puts
property below inherent rights such as the right to health or food .”On
the other hand the constitution of South Africa does not give recognition
to intellectual property rights . This was justified on the ground that
“there is no universally accepted trend towards the protection o f IPR in
human rights instruments and bill of rights . Further the ESCR (
Economic , Social and cultural rights ) committee is deliberating on
making amendments to the TRIPS agreement to include cultural social
and economic rights . The committee has argued that right to intellectual
property is a human right as “it is the right of everyone to benefit from
the protection of moral and economic work derived from the inherent
dignity and worth of all persons .” Further the draft of The economic ,
social and cultural committee which proposes certain amendments to the
TRIPS agreement has also raised certain points of contradictions between
Intellectual Property rights and human rights . The draft says that “
human rights are fundamental , inalienable and universal whereas
Intellectual Property rights are statutory rights granted by state which are
temporary . Further the committee argues that the draft does not set any
boundaries between the rights of the individual and the rights given to
business.Hence to summarise article 15 (1) of the Economic , Social and
cultural covenant needs to be reanalysed from the point of human rights .
Further in short all the arguments made by ESCR committee emphasizes
on the fact that there needs to be a balance between intellectual property
rights and human rights .”This balance needs to take into account that
there is a dialectical relationship between the desire to promote culture ,
science and technology for the benefit of society in general and each
individual in particular .”Further the covenant does not give any place for
monopoly which is itself the concept of intellectual rights . The debates
of the economic , social and cultural committee implied the fact that
article 15(1 ) needs to be understood in the context surrounding human
rights . Further the concept of human rights needs to be widened to
include science and technology .For example studies needs to be
conducted on the impact the policies in the field of science and
technology has on the marginalized and disadvantaged people .Another
link between human rights and intellectual property under article 15(1)
of ESCR committee is the issue of “Traditional Knowledge protection.
An example of traditional knowledge protection can be the issue of
biodiversity conservation. Several debates have arisen in this regard as to
 whether the more importance needs to be given to “conserve existing
knowledge rather than providing incentives to further develop their
knowledge.

Intellectual Property rights and patent law.

” Different kinds of links between intellectual property rights and human rights
can be identified.For example, patent laws recognize that there is a socio-
economic dimension to the rights granted and that a balance must be struck
between the interests of the patent holder and the broader interests of society.
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. Finally, human rights treaties recognize certain rights pertaining
to science and technology.

 Intellectual Property rights verses human rights

 After the trips argument there has been debates on the relationship
between intellectual property rights verses right to health.

The notion that intellectual property rights promotes development Has

remained hidden for long . This was again debated after
 The HIV/AIDS epidemic in brazil and south Africa
 The cases of biopiracy and the misappropriation of appropriate
knowledge
 Gene patenting and the research on stem cells for patenting
 The right to fair use of the copyrighted material

The human rights approach to intellectual property rights needs to find a

balance between “The moral and economic rights of the creator or the inventor
in form of patents with the wider interest of the society.

With regard to the debates between intellectual property rights and right to
health “the link has become apparent in the relationshipbetween medical patents
and the realization of the right to health, particularly in the context ofthe
HIV/AIDS epidemics. This is due to the fact that a number of drugs used to
alleviateHIV/AIDS are protected by patents. There is, therefore, a direct link
between patents, the price of drugs, and access to drugs.” Further the two
critical issues in the debates between intellectual property rights and the right to
health are accessibility and affordability . Patent law in Intellectual Property
rights both increases and restricts affordability . “They have the potential to
improve access by providing incentives for the development of new drugs as
well as to restrict access because of the comparatively higher prices of patented
drugs. In practice, access to drugs is governed by a number of factors. Their
price is one important factor. Other factors that influence access include
situations where there is only limited competition between generic producers,
local taxes, and mark-ups for wholesaling, distribution, and dispensing.
Improving access can thus not be limited to bringing prices down through
competition but must also include further measures such as public subsidies, or
price control measures.”

The link between Intellectual Property rights and rights to health can be further
elaborated by the cases of Brazil and South Africa. In both Brazil and South
Africa non governmental organizations had campaigned for “access to
medicines “.In Brazil the debate between Intellectual Property rights and right
to health started in 1990 when the federal government began free delivery of
AZT , one of the first anti retroviral drugs produced by the state . Initially the
Brazilian Federal Government purchased anti retroviral drugs from
pharmaceutical companies that had undertaken research and development .
However due to high costs in 1993 the Brazillian government began producing
cheaper generic versions of patented medicines . In the Pre TRIPS era , this
was permissible because brazil was not required to grant patent to all areas of
technology such as pharmaceuticals. However in 1996 a year after TRIPS
agreement cameinto force Brazillian Industrial Property law was introduced to
provide for the protection of pharmaceutical products . However attempts have
been made to provide for a balance between patent rights accorded to
pharmaceutical products and the right to health .The Brazilian law has
provisions where any citizen can report if anyone misuses patent rights in an
abusive way . Brazillian law 9279/976 allows a government authority to issue a
compulsory licence where a patent holder exercises patent rights in an abusive
manner or by the use of economic power proven by administrative or court
decision . There report of the high commissioner concludes that “On the facts
that have been provided by the government of Brazil , it is possible to say that
the Brazilian case demonstrates how the provision of TRIPS agreements can be
implemented in ways that respect , protect and fulfil the right to health .Through
careful legislative implementations of the TRIPS provisions , the Brazilian IP
Law supports the implementation of national health policy aimed at providing
essential drugs to those who need them.”Like Brazil in South Africa the
Treatment action campaign( was started by HIV / AIDS activists . The main aim
of the movement was to reinforce the fact that “access to life saving
combinations anti retroviral treatment for all HIV positive people is a human
right .TAC was formed in 1988 when human rights issyes had a ground in the
society . The success of TAC was in the fact that access to anti retroviral drugs
had increased . Reference – ( Edward elgar , Intellectual Property and
human rights , a paradox edited by William Groeshide).

The aim of increasing medical patents is to increase research . However even

there are a few obstacles .” Patent protection does not ensure that the most
common diseases will attract the greatest amount of research. This implies that
even if patent protection can be justified in markets where all consumers can
afford to pay directly or indirectly the price of patented drugs, this is not so in
other situations. The central issue is that the realization of human rights must be
judged according to the level of implementation among the most disadvantaged.
The issue is not, therefore, whether certain countries can afford patent rights,
but whether the poorest in any given country stand to benefit from the
introduction of medical patents.

According to article 11 of ICESCR recognizes the right of everyone to an

adequate standard of living .This includes but is not limited to , the right to

adequate food , clothing, housing and the continuous improvements of the

living conditions . It also creates a obligation on parties to work together to

eliminate world hunger . ( Reference –CESCR General Comment , 12 ,the

right to adequate food , UN economic and social council ,12 may 1998 ,

retrieved -2 June , 2008).

“The debate between Intellectual Property rights and right to food is not new. In

some countries the debate started in Nineteenth century whether inventions

related to nutrition could be barred from patent production for reasons for

hindering food supply . Fierce debates regarding the link between Intellectual

Property rights and the right to food took place in the Netherlands , Belgium ,

Germany and US .The German Patent act of 1877 excluded food products from

patentability . Simmilarly IN United States of America the plant variety

protection act explicitly excluded 6 crops i.e. Ocra , Celery , Tomatoes , Pepper

, carrots and cucumbers in its field of application the so called crop exemption .

Simmilarly In Berlin the controversy found its origin in a passage from the

report from the Parlianmentary commission which said that products such as

chocolate , macaroni , ginger bread should not be patentable as they were in fact

nutrition .( Reference- Edward Elgar , Intellctual Property Rights and

Human rights a paradox edited by William Grosheide).

In the aspect of intellectual property rights verses right to food “ “there are

links between patentsin the field of genetic engineering, the limitation of

farmers’ rights, and access to food. While thelink between intellectual property

rights and human rights has been made, it has been discussed almost exclusively

in human rights forums .

IPR and human right – comparison and contradictions

The supporters of the theory according to which human rights and IPRs are in

opposition have attempted to deny IPRs the status of human rights, thus

establishing a hierarchy among the rights contained in the UDHR, which would

afford higher priority to certain human rights and thus justify imposing

limitations on IPRs for the benefit of interests belonging, from their viewpoint,

to the public rather than to the private interest.

The proponents of the co-existence theory, on the other hand, do not consider

that there is an inherent conflict between the two bodies of law, as they

interplay in a mutually supportive manner. Since IPRs have contributed to the

establishment and development of other fundamental right such as freedom of

speech through copyright.

References

2) Edward Elgar , Intellectual Property and Human rights a paradox

,edited by William Grosheide , Center for Intellectual Property law.

3) WIPO , Office of the United Nations high commissioner of human

rights, Intellectual Property and Human rights.

4) INTELLECTUAL PROPERTY RIGHTS VS. HUMAN RIGHTS: A

NEED TO REEXAMINE THE RELATIONSHIP BETWEEN TWO

TO EXAMINE SOCIAL BEING.Gargee Rajvanshi , Rajeev Gupta ,

SSRN ,

5) Shodhganga , Chapter 6 , Human rights and constitutional

dimensions of Intellectual Property rights