Author: Pankhuri Agarwal, Research Associate
Long ignored by both the human rights and intellectual property, the co-existential puzzle of the two still remains. Laurence Heifer has famously observed that – while intellectual property and human rights “were once strangers,” and have “for decades…developed in virtual isolation from each other,” they are now becoming “increasingly intimate bedfellows” as “international standard setting activities have begun to map previously unchartered intersections between intellectual property laws on the one hand and human rights law on the other ((Are Intellectual Property Rights Human Rights? Patent Protection and the Right to Health, 93 J. Pat. & Trademark Off. Soc’y 339 (November 2011).)).”
The Window of Human Rights
The international law of human rights as we know it today is a post World War II phenomenon ((Thomas Buergenthal, International Human Rights Law and Institutitons: Accomplishments and Prospects, 63 Wash. L. Rev. 1 (1988).)). The United Nations Charter is both the constitution of the Organization and a legally binding multilateral treaty. The Universal Declaration of Human rights is considered to be the centerpiece of the international human rights revolution and gradually has attained the status of international obligation. The International Covenant on Human Rights consists of three separate treaties- The International Covenant on Civil and political Rights, the optional protocol to The International Covenant on Civil and political Rights and The international Covenant on Economic, Social and Cultural rights. According to the Vienna Declaration of the World Conference on Human Rights of 1993, “all human rights are universal, indivisible, interdependent and interrelated”. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms ((Vienna Declaration and Program of Action, adopted by the United Nations World Conference on Human Rights, para 5, June 25, 1993.)). Article 27 (2) of the UDHR and Article 15 (c) of International Covenant on Economic, Social and Cultural Rights recognizes everyone’s right ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. The implication is that human rights put the emphasis on societal benefits which is opposed to that of intellectual property rights instruments, which focus mainly on the rights of authors, inventors and other legal entities to claim exclusive rights over an intellectual creation ((Philippe Cullet, The Relationship between TRIPS and the Human Right to Health, International Affairs (Royal Institute of International Affairs 1944-), Vol. 79, No. 1(Jan., 2003), pp. 139-160.)).
Delving into Intellectual Property Rights
Intellectual property is a form of knowledge which societies have decided can be assigned specific property rights ((Final Report of the Commission on Intellectual Property, Integrating Intellectual Prperty Rights and Development Policy, U.K. Commission on Intellectual Property Rights (2002).)). Taking cue from the final report of the Commission on Intellectual Property, the rationale for IP Protection can be summarized as:
1. Intellectual property creates a legal means to appropriate knowledge as it has the character of non-rival public good.
2. Difficulty in preventing others from using or copying it.
3. By conferring temporary market exclusivities, patents allow producers to recoup the investment in R&D and reap a profit in return for making publicly available the knowledge on which the invention is based.
4. The monopoly pricing is being compensated by the promotion to invention and innovation.
The right to the protection of interests in intellectual creations is a “fundamental, inalienable and universal” entitlement ((Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, U.C. Davis Law Review, Vol. 40, pp. 1039-1149 (2007).)). The drive to protect the intellectual property of individuals has been well recognized by the international community as evident in Article 1, Section 8, Clause 8 of the US Constitution ((“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”)), Article 13 of The American Declaration on the Rights and Duties of Man ((“He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.”))and Article 27 of The Universal Declaration of Human Rights ((“Everyone has the right to the protection and material interests resulting from any scientific, literary, or artistic production of which he is the author.”)). Because human rights “exist independently of the vagaries of state approval, recognition, or regulation,” the right to the protection of interests in intellectual creations exists regardless of the protection offered by current intellectual property laws and treaties ((Supra note 6.)). There had been much argument as to the possibility of inclusion of IPR within the class of human rights but, the Lockean labour theory and Mill’s Utilitarian theory were not strong enough to trump over the practical and overt difficulties of classifying it so. Unlike Human Rights, IPR are limited-duration statutory rights given by the State which can be curtailed in certain circumstances where they conflict with the larger interests of society ((Vandana Shiva , Agricultural Biodiversity, Intellectual Property Rights and Farmers’ Rights, Economic and Political Weekly June 22, 1996, pp. 1621-31.)).
Tussle between IPR & HR
There has been persistent debate about the co-existence of Human Rights and IPR in the international plane. The first approach sees strong intellectual property protection as undermining and therefore as incompatible with a broad spectrum of human rights obligations, especially in the area of economic, social, and cultural rights ((Laurence R. Helfer, Human Rights And Intellectual Property: Conflict Or Co-Existence?, Netherlands Quarterly of Human Rights, Vol. 22/2, 167-179, 2004.)). The second approach to the intersection of human rights and intellectual property sees both areas of law as concerned with the same fundamental question: defining the appropriate scope of private monopoly power that gives authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public has adequate access to the fruits of their efforts ((Ibid.)).
The Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on Intellectual Property Rights and Human Rights which laid down the ‘actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights’ including;
(1) the transfer of technology to developing countries;
(2) the consequences for the right to food of plant breeders’ rights and patenting of genetically modified organisms;
(4) control of indigenous communities’ natural resources and culture; and
(5) the impact on the right to health from restrictions on access to patented pharmaceuticals ((Ibid)).
IPR shadow on Indigenous people right to Traditional Knowledge
Indigenous people due to them being associated with a certain region know the curing properties of herbs, leaves, and other treatments which are not known to the rest of the world. Multinational corporations, aware that folk medicines can be developed as medicines with worldwide market power ((David Downes, ‘How Intellectual Property Could Be a Tool to Protect Traditional Knowledge’, 25 Colum. J. Envtl. L. 253, 254-57 (2000).)), have sought to patent or acquire rights over forms of these treatments. The first attempt internationally to protect the rights of the indigenous people began when the International Labor Organization (ILO) convened a Conference Concerning the Protection of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957. In 1981 WIPO and UNESCO adopted a Model Law on Folklore. In 1989 the revised ILO Indigenous and Tribal Peoples’ Convention defined ‘indigenous people’ for the first time. The first notable development was the United Nations Conference on Environment and Development (The Rio Earth Summit), 1992 as its Chapter 26 of Agenda 21 is devoted to recognizing and strengthening the role of indigenous communities ((U.N. Doc. A/CONF/151/26 Vol IV, available at United Nations Environment Programme<http:// www.unep.org>.)). The concept of Farmers’ Rights was introduced in 1989 by the Food and Agricultural Organisation of United Nations (FAO) into its International Undertaking on Plant Genetic Resources and in 1992 the Convention on Biological Diversity highlighted the need to promote and preserve traditional knowledge ((Bernard O’Connor, ‘Protecting Traditional Knowledge: An Overview of a Developing Area of Intellectual Property Law’, The Journal of World Intellectual Property Vol 6 Issue 5, p. 677)). In 1993, the Working Group on Indigenous Populations accepted the Draft Declaration on the Rights of Indigenous People ((Available at http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm)). The Trade Related Intellectual Property Rights System (TRIPS), 1994 was the next major international development. Philippines was the first nation to legislate (Indigenous Peoples’ Rights Act, 1997) to “protect and promote the rights of indigenous cultural committees/indigenous people ((The Indigenous Peoples’ Rights Act of 1997.)).” In India, the momentum towards protection of the indigenous properties increased after the texmati, turmeric and neem disputes. The First Inter-Ministerial Committee on Protection of Rights of Holders of Indigenous Knowledge, Protection of Plant Varieties and Farmers Rights Bill, 1999 ((Protection of Plant Varieties and Farmers Bill, 1999)),and the Bio Diversity Bills of 1999 were drafted. To make the protection mechanism effective, the indigenous people should be made aware of the economic rights and the long term benefits which they could have if protected as a trade secret, or under any IP Laws. They can enter into term agreements with the users of their traditional knowledge indigenous knowledge short-term reciprocity addressing immediate needs of the community, indigenous knowledge public health, forest conservation, and medical care, the medium-term reciprocity consisting of benefits before profit sharing indigenous knowledge equipment, books, and other resources and the long term reciprocity involving profit sharing ((Donald E. Bierer, Thomas J. Carlson, and Steven R. King, ‘Shaman Pharmaceuticals: Integrating Indigenous Knowledge, Tropical Medicinal Plants, Medicine, Modern Science and Reciprocity into a Novel Drug Discovery Approach’, <http://www.netsci.org/science/special/feature11.html>.)).
Patents and Right to health
The figures describing the limited access to essential medicines in developing countries are staggering: almost two billion people, one-third of the global population, lack regular access to essential medicines ((Lisa Forman, Trade Rules, Intellectual Property, and the Right to Health, Ethics & International Affairs, (2007), < http://www.iatp.org/files/451_2_100411.pdf>.)). TRIPS does allow certain exceptions to patenting and limitations on exclusivity in the interests of public health and social welfare, including permitting parallel imports which allows countries to import cheaper versions of patented medicines without any restrictions and compulsory licensing authorizing the governments to manufacture generic versions of patented medicines without corporate consent in certain circumstances ((Ibid.)). The amendment to the “export solution” is intended to permit least-developed and other countries to import generic medicines made under compulsory licensing according to strict conditions ((Ibid.)).
The International Covenant on Economic, Social and Cultural Rights (ESCR Covenant) which recognizes everyone’s right to the ‘enjoyment of the highest attainable standard of physical and mental health ((Supra note 4.)).’ The Declaration on the TRIPS Agreement and Public Health, 2001 and Doha Ministerial Declaration are the efforts in the direction of protecting the human right to health. The steps taken by UN in pursuance of it are;
(1) three resolutions of the Commission on Human Rights on ‘Access to Medication in the Context of Pandemics such as HIV/AIDS’
(2) an analysis of TRIPS and public health by the High Commissioner for Human Rights
(3) an official ‘statement’ by the Committee on Economic, Social and Cultural Rights that ‘intellectual property regimes must be consistent with’ the rights in the Covenant and
(4) a report by the Special Rapporteurs on Globalization, which argues that intellectual property protection has undermined human rights objectives ((Laurence R. Helfer, Human Rights and Intellectual Property: Conflict or Coexistence?, (2003),
However, to our dismay persistent corporate and governmental threats of legal or economic sanctions and the complexity, cost, and limited duration and scope of the rules do not allow the export of patented medicines to poor countries causing the drug prices to remain at patent monopoly levels ((Supra note 22.)). This is in violation with the three primary duties of the domestic government: not to interfere with the enjoyment of this right, to prevent interference in the right by third parties, and to provide health care where people cannot secure access to goods on their own ((Ibid.)).
Farmers’ Rights, Plant Patent and other Sui Generis System
Modern technology makes possible the selective transfer of genetic material between organisms, and has allowed for the development of seeds and plants that tolerate herbicides, resist pests, have improved nutrition all profiles, grow in adverse conditions, and have better handling and processing characteristics ((Keith A. Zullow, Raivo A. Karmas, Protecting Intellectual Property in Plants and Seeds, <http://www.goodwinprocter.com/~/media/Files/Publications/Attorney%20Articles/2008/Protecting_Intellectual_Property_in_Plants_and_Seeds.ashx>.)). The breeders required protection for their varieties of Plants as huge investment was required for such procedures and the success rate for getting an intended and distinct variety of fruit plant or shrub was low. The Plant Patent Act,1930, The International Union for the Protection of New Varieties of Plants1961, 1978, 1991, Protection of Plant Varieties and Farmers’ Rights Act, Model law of the Organization of African Unity (OAU), The Thai Plant Variety Protection Act 1999. PGR legislation is a conflict between farmers and the seed industry and between the public domain and private profits, between an agriculture that produces and reproduces diversity and one that consumes diversity and produces uniformity ((Supra note 11.)). IPRs become a means of monopoly that wipe out farmers’ rights to save and exchange seed leading to TNC totalitarianism in agriculture granting them the authority to decide what to be grown, using what, when to sell, to whom and at what prices ((Ibid.)).
It has really become a serious concern for the humanity the ever increasing realm of IPR. The silver line in the cloud is the constant and dedicated efforts of the nations and international forum to mitigate the risks of danger to human rights by IPR by encompassing the neutralizing measures such as parallel imports, compulsory licensing, fair use, national emergency etc. The strive is to balance the IPR with HR so as to serve the interest of both communities. In her report, the High Commissioner of Human Rights identified three approaches;
(1) the just remuneration approach,
(2) the core minimum approach, and
(3) the progressive realization approach ((Supra note 6.)).
In fact, intellectual property rights further the extension of other human rights, such as political speech, health care and education ((Tom Giovanetti & Merrill Matthews, Intellectual Property Rights and Human Rights, The Institute for Policy Innovation, September 25, 2005, < http://www.ipi.org/ipi_issues/detail/intellectual-property-rights-and-human-rights>.)). It was copyright that took publishing out of the hands of governments and monarchs and enabled the free published expression of individual authors and publishers ((Ibid.)). The affirmation of human rights by IPR can be visualized for new pharmaceuticals improve health care, widespread creation and distribution of new pharmaceuticals and the expansion of publication or that expansive publication improves education ((Ibid)). The shift in the ideology of the international community can be experienced for the traditional notion of direct obligation upon the states has been convoluted to the states’ obligation to try to the best of its efforts to preserve the human rights and not allowing it to be trampled upon by the holders of intellectual property rights. The harmonization between the two is to be achieved for their coexistence.