Human rights and intellectual property rights
The Intellectual Property Rights, as the name suggests, are the rights given to an inventor or the creator as a reward
For creating or inventing something new as a result of his own intellect and importantly
• To benefit the Society out of that invention.
The Human Rights are the rights which are given to the Human Beings, not as a matter of chance or choice but as a matter of his being a human. They are the rights ensuring the basic survival of the Human Beings.
Now, if we consider out the nature of Intellectual Property Rights with reference to the Human Rights then we found that:
• Intellectual Property Rights are non-fundamental Human Rights,
• Open to State interference to fulfill Human Rights obligations.
Thus, after these definitions, we can easily progress forward in understanding the conflicts between the two as well as the resolution of the conflicts between the Human Rights and the Intellectual Property Rights.
The Human Rights and the Intellectual Property Rights are the two domains of Law that have evolved independently. Intellectual Property Rights consist of statutorily recognized Rights, providing incentives for the participation of the private sector in various fields and seek to contribute to technological development. On the other hand, Human Rights are the Basic Rights, which are recognized by the State, and are inherent Rights linked to human dignity.
The Globalization of the Intellectual Property Rights triggered the debate on the relationship between the Human Rights and the Intellectual Property Rights, because many developing countries, particularly the least developed countries, are not in a position to implement the TRIPS standards in their jurisdiction without further compromising their development at the cost of Human Rights.
The indigenous communities state that the Government should recognize their claim over their traditional knowledge matter, which is related to the agriculture, biodiversity, etc. According to the Intellectual Property Rights regime, the traditional knowledge is considered to be a part of the public domain, since it does not meet the established criteria for protection or private ownership. Since this traditional knowledge is ownerless, various private enterprises utilize this knowledge for further inventions, and thereafter protect their inventions by means of patents, copyrights, etc. and the indigenous communities are deprived of their Lawful share.
Thus, the existing flaw in the Intellectual Property Rights regime leads to the exploitation of the indigenous communities by various enterprises, which leads to the violation of the Human Rights of the indigenous communities. In this respect, Intellectual Property Rights Law infringes on the domain of Human Rights Law. The Government should enact Legislations, where the indigenous communities can seek damages for unauthorized usage of their traditional knowledge. The Government can also protect the traditional knowledge by denying patents, copyrights, etc. for the objects, which have been derived from the traditional knowledge.
The main justification which is given in support of Intellectual Property Rights is stated to be that these incentives and rewards to inventors and the creators' results in the benefits
for the society.
The correlation between the Human Rights and the Intellectual Property is intriguing, because it transcends different levels and aspects of each of the Legal fields respectively. However, it seems as though that the relationship between the two is primitively due to the fact that Intellectual Property Rights imposed limitations on the accessibility and realisation of Human Rights by broadening its scope of protection.
THE OVERLAP OF THE INTELLECTUAL PROPERTY RIGHTS AND THE HUMAN
Today Human Rights Law and Intellectual Property Law overlap to an extent far greater than initially envisaged. The Intellectual Property has already found its way into the Human Rights. The Right to Intellectual Property is inserted in the Universal Declaration of Human Rights (UDHR) and the United Nations Declaration for the Right of Indigenous People (UNDRIP).
The UDHR is probably the most prominent International document to be said to annotate the Human Rights regime, which effectively annotates the Intellectual Property Rights on an International scale. Although not expressly mentioned, Article 27 (2) UDHR states that "... 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."
UDHR (UNIVERSAL DECLARATION OF HUMAN RIGHTS) AND THE INTELLECTUAL PROPERTY RIGHTS
The UDHR Article 27.1, clearly states that "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," and Article 27.2 of the UDHR, states that "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." These two paragraphs of the same provision of the UDHR illustrate the complex and sometimes ambiguous relationship, which may give rise to contradictions, between the Intellectual Property Rights and Human Rights.
AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY
RIGHTS AND THE HUMAN RIGHTS
Human Rights and Intellectual Property Laws are two distinct fields that have largely evolved separately. The adoption of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and its implications for developing countries have fundamentally changed the nature of the debate concerning Intellectual Property Rights and Human Rights. Their relationship needs to be re-examined for a number of reasons. This is demonstrated in two ways:
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Firstly, the impacts of Intellectual Property Rights on the realization of Human Rights such as the Right to Health have become much more visible after the adoption of the Trade Related Aspects of Intellectual Property (TRIPS) Agreement.
Secondly, the increasing scope of Human Rights provisions in protecting individual contributions to knowledge in the field of medical patents is due to the rise in Intellectual Property Rights.
INTELLECTUAL PROPERTY RIGHTS AND REALISATION OF HUMAN RIGHTS (PATENT RIGHTS vs. RIGHT TO HEALTH AND RIGHT TO FOOD)
Regarding the Human Right to Health, the link between Intellectual Property Rights and the Human Rights has become apparent in the relationship between medical patents and the Right to Health, particularly in reference to the HIV/AIDS epidemics. This is due to the fact that a number of drugs used to alleviate HIV/AIDS are protected by patents. Hence, there is a direct link between patents, the price of drugs, and access to drugs.
Regarding the Right to Food, there are links between patents in the field of genetic engineering, the limitation of farmers' Rights, and access to food. While the link between Intellectual Property Rights and Human Rights has been made, it has been discussed almost exclusively in Human Rights forums. In other words, there remains a visible imbalance insofar as the language of Human Rights has not penetrated Intellectual Property Rights institutions, whereas the language of Intellectual Property Rights is now regularly addressed in Human Rights institutions.
INTERNATIONAL CONVENTION ON ECONOMIC, CULTURAL AND SOCIAL RIGHTS (ICESCR) AND INTELLECTUAL PROPERTY RIGHTS
The Right to the "enjoyment of the highest attainable standard of physical and mental health” is specifically protected under the International Convention on Economic, Cultural and Social Rights (ICESCR). Core obligations of member States include the necessity to ensure the Right of access to health facilities, especially for vulnerable or marginalized groups. In the case of primary health care, this includes the provision of essential drugs. In the case of HIV/AIDS, more clear elaborations of these obligations have been given. The UN Human Rights Commission adopted resolutions indicating that access to medication in the context of HIV/AIDS is one fundamental element for achieving the full realization of the Right to Health. In other words, accessibility of medicines and their affordability are two main components of the Right to Health. Medical Patents have direct impacts on accessibility and affordability. They have the potential to promote access by providing incentives for the development of new drugs and also to restrict the access because of the comparatively higher prices of patented drugs. The fact that patented drugs are repeatedly more expensive than generic drugs is a relevant consideration. 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. Better access to drugs can be approached from the point of view of medical patents or the Right to Health. The dichotomy is unavoidable insofar as each relevant legal framework is largely insulated from the other, but both need to be considered jointly because, in practice, a solution focusing on medical patents that ends up constituting a denial of the Right to Health would not be acceptable.
RESOLUTION OF THE CONFLICT
Thus, the very basic debate is that how a balance to be maintained between the Intellectual Property Rights and the Human Rights because the smooth existence of both is required for the appropriate and rich economic and the social development of the society as a whole.
For resolving the conflict between Human Rights and Intellectual Property Rights, the precise Rights which are being undermined should be identified. The Human Rights Organizations should develop specific interpretations of the ambiguous Rights (mainly economic, social and cultural rights) in order to comply with the terms of the TRIPS Agreement. Secondly, if the TRIPS Agreement is seen from the Human Rights perspective, then the consumers of Intellectual Property products will be on an equal stage with the owners of Intellectual Property Rights. The agreement regards the consumers of these products inferior to the owners. But if the Human Rights purview is added to the agreement, then the consumers will also be the holders of these internationally guaranteed Rights. Thirdly, rather than advocating minimum standards for Intellectual Property Rights protection, the Government should impose maximum standards for Intellectual Property Rights protections. This would act as a limit for the multiplying standards of Intellectual Property Rights protection. It is also suggested for better protection of the Human Rights if a minimum required standard of the protection of the Human Rights is to be maintained while realizing any kind of Intellectual Property Rights. Lastly, the international forums on Intellectual Property Rights, such as the World Intellectual Property Organisation (WIPO), the World Trade Organisation (WTO), etc., while making new Laws on Intellectual Property Rights, should analyse the Laws with a Human Rights perspective. It is only in such circumstances that the Human Rights Law and Intellectual Property Rights Law will be able to co-exist with one another properly.
By: Ashish Ranjan Samal,
Advocate, Orissa High Court
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