Human Rights and Rights in Intellectual Property — Fixing the Framework for a Better Tomorrow

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, Universal Declaration of Human Rights.[1]

Dampening economies, severe climatic conditions and depleting resources are changing the narrative of survival. As distress calls emerge from various countries, the collective conscience of humanity is being put to test. Domestically, rising woes of a weak economy are gradually taking form of a crises and it is time to contemplate alternate ways to sustainable productivity the benefits of which are accessible by a larger public. While development is imperative its
haphazardness must be contained now more than ever due to its impact on human rights.

What role does Intellectual Property (IP) play, one may wonder. To contextualise, World Intellectual Property Organisation (WIPO) brought forth a rather well-timed announcement on the IP theme of the year 2020 — Innovate for a Green Future [2] stressing the need for collective action. This instantly brings me back to my interpretation[3] of the 11th Global Innovation Index (GII) released in 2018 that was themed Energising the World with Innovations. GII, 2018 studied the importance of green technology and increasing requirement of encouraging innovations along the line.

A key finding in the detailed GII Report was that imbalances in regional innovations continue to hurt economic conditions as well as human development, indicating that innovation, Intellectual Property Right (IPR) and human rights must go hand in hand for a sustained development. This finding raises a pertinent question — whether there exists a relationship between human rights and IPR. Opposing views emerge and I am of the opinion that existence of a relationship between these rights cannot be denied, the trick question is interpretation of its nature i.e. whether it is a positive or negative one. In the next sections, I briefly look at the contentious human rights-IP relationship from the international viewpoint.

Human Rights and IPRs: A Connect-Disconnect

The debate on linkage of human rights and IPR has continually attracted two extreme views — a conflict approach and a coexistence approach. There are a broad range of political, economic, social, practical and philosophical issues that straddle the intersection of human rights and IP. These fascinating and challenging issues are attracting increasing attention from Judges, government officials, attorneys and scholars, whose activities are mapping the contours of a rapidly changing legal landscape.[5]

As quoted at the beginning here, Article 27 of the Universal Declaration of Human Rights (UDHR) enunciates an inherently strong connection between human rights and IPR. Following closely to Article 27, the International Covenant on Economic, Social and Cultural Rights (Icescr), under Article 15(1) further validates rights to take part in cultural life; to enjoy the benefits of scientific progress and its applications and; 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.[6]

Nearing the end of 20th century a critical movement began in the field of IPR when a host of nations made concerted demands for access to medicines, access to knowledge and protection of cultural and traditional knowledge systems thus demanding an IP regime that is respectful of the rights of indigenous communities as well as the diverse developmental levels. Although this idea was not new, it drew little attention until the formal internationalisation of Intellectual Property Rights (IPRs) through the Trade-Related Aspects of Intellectual Property Rights (Trips) agreement. Professor Peter K. Yu in fact suggests a lack of interest from policymakers, scholars and activists that was due in part to the arcane, obscure, complex, and highly technical nature of intellectual property law and policy and in part to the ability of countries to retain substantial policy space for developing their own intellectual property systems[7]. After several negotiations when Trips was finally formalised the global outlook towards IPR underwent a massive transformation however developing and less-developed countries remained belligerent on the potential conflicts of the agreement vis-à-vis realisation of economic, social and cultural rights. Later, the World Trade Organisation (WTO) emphasised the flexibilities built into the Trips agreement and other international trade agreements in order to boost the potential coexistence of human rights and IPR.

The debate on the two rights’ systems was advanced by the Committee on Economic, Social and Cultural Rights (Cescr) in 2006 through General Comment No. 17[8]. The comment provided authoritative interpretation of Article 15(1)(c) of the Icescr making clear that not all attributes of IPRs have human rights status[9]. To summarise, the comment differentiated between the two rights by linking human rights as safeguarding the personal link between authors and their creations and between communities and their collective cultural heritage whereas linking intellectual property regimes primarily to protection of business and corporate interests and investments. It further clarified that the scope of protection of the moral and material interests of the author provided for by Article 15(1)(c) does not necessarily coincide with what is referred to as IPR under national legislation or international agreements.

Coming back to the Trips agreement, the impact it has made is considered far-reaching than that of pre-existing international legal instruments. Taking stock of the post-Trips era, it is observed that some key elements of IP regime like subject-matter and scope of protection have expanded rapidly in treaties and in national laws — including the laws of developing countries in response to new online information technologies, the Trips and the adoption of maximalist IP protection standards and robust enforcement mechanisms in plurilateral, regional and bilateral “Trips Plus” treaties[10]. In the same timeline for assessing the trajectory of human rights regime, the changes include increased attention to indigenous peoples’ rights and traditional knowledge; the adverse consequences of expansive IP protection rules for economic, social and cultural rights; a growing awareness of the human rights responsibilities of multinational corporations; and attempts by those same corporations to invoke the human right of property as an alternative legal basis for protecting intangible knowledge assets[11].

Constantly changing global dynamics keep the debate between human rights and IPR alive. A persisting challenge in this environment is to strike the right balance between human rights and IPR. Often it is not easy to see how specific intellectual property norms interact with provisions of human rights instruments that are usually drafted in broader language[12]. Moreover, this challenge gets even bigger when there is not a one stop solution for all nations to abide given the differing rates of development.

Re-approaching the Discussion on Human Rights and IPRs

A considerable volume of literature subsists on the complex framework of human rights and IPR, however it is the need of the hour to reignite the discussion on how these rights fit together. A continued debate in resolving a complex inter-relationship between the two rights may generate solutions having a far-reaching impact on the growing concerns of sustainable development for all. I take cue from Professor Yu’s scholarly work to understand some global advancements that justify revisiting the human rights-IPR relationship[13].

First, the tendency of like-minded countries, mostly the developed ones coming together to set a higher benchmark through plurilateral agreements like the highly controversial Anti-Counterfeiting Trade Agreement (ACTA) or Trans-Pacific Partnership (TPP). For negotiations on ACTA no more than four per cent of the world’s developing countries were involved which raises questions on the genuity of stronger nations[14]. TPP contained controversial new protections for prescription drugs, including a new class of medications known as biologics[15]. It is pertinent to note during the Trips negotiations, developing nations voiced significant apprehensions on issues like transfer of technology, bio-piracy and reduction of traditional or indigenous communities’ control over their pool of genetic, natural and cultural resources and restrictions on access to medicines as a serious impediment to enjoyment of the right to health.

Second, the possibility that current enforcement measures run a risk of turning obsolete due to rapid development of disruptive technology alongside sophisticated networks of piracy and counterfeiting which in turn threatens human rights in many cases. For example, a producer’s lost opportunity of earning premium over his product registered as a geographical indication in India sold over the internet without his knowledge. How does the producer enforce his rights on cross-border online infringement? Must he lose out on his right to protect economic, creative and cultural aspects residing in his IP owing information asymmetry arising from an online platform where the consumer is unaware of the product origin and rights in it.

Third, a larger group of individuals are collectively participating in creative communities producing “user-generated content”, a term that has stormed the world of IP in recent times meaning thereby that the ability to create in today’s digitally advanced world is no longer limited to a specific class of intellectual workers or creative labourers. The growing community of creative individuals means the human rights to benefit from creations are getting more universal in nature.

Looking at the above reasons, we can safely deduce the gravity of issues like digital advancements and their broad implications (not necessarily deleterious). It is also safe to say the re-examination of the inter-relationship between intellectual property and human rights is justified. Research in this area can prove beneficial for necessary collective actions at the international platform.

Conclusion

Do human rights connect with the entirety of IPR? Are certain IPR attributes immune from the human rights purview? While analysing the inter-connection, which rights should be considered from the giant structure of human rights? The answers to these questions inevitably depend on one’s
worldview, basic assumptions,  ideological values and philosophical dispositions[16].

Challenging as it is but this relationship between human rights and IP rights needs renewed and collective attention. After thorough assessment of drastic changes threatening sustenance of several habitats around the globe, nations might want to explore the possibility of human rights framework existing within the contours of intellectual property regime in order to encourage innovations and creations towards a green globe that reach out to humanity as a whole. While individual goals and benefits matter it is certainly time to think of collective and sustainable development.

*Hetvi Trivedi is Research Associate, GNLU-GUJCOST Research Centre of Excellence in IP Laws, Policies & Practices, Gujarat National Law University and can be contacted at htrivedi@gnlu.ac.in.

[1] Universal Declaration of Human Rights, 10-12-1948

[2] World Intellectual Property Day — 26-4- 2020 Innovate for a Green Future, World Intellectual Property Organisation, available at <https://www.wipo.int/ip-outreach/en/ipday/>.

[3] Hetvi Trivedi, Moving Towards Better Integration of Energy Innovation and Intellectual Property, (2018) PL (IPR) September 89, available at <https://blog.scconline.com/post/category/experts_corner/gujcost-gnlu/>.

[4] Laurence R. Helfer, Mapping the Interface Between Human Rights and Intellectual Property, Research Handbook on Human Rights and Intellectual Property, Ed. Christophe Geiger, Edward Elgar (2015) 6-15, 6.

[5] Ibid

[6] International Covenant on Economic, Social and Cultural Rights, 16-12-1966.

[7] Peter K. Yu, Intellectual Property and Human Rights in the Non-Multilateral Era, 64 Florida Law Review (2012) 1045- 1100, 1049.

[8] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant), 12-1-2006, E/C.12/GC/17, available at <http://docstore.ohchr.org/SelfServices/FilesHandler.ashxenc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQcMZjyZlUmZS43h49u0CNAuJIjwgfzCL8JQ1SHYTZH6jsZteqZOpBtECZh96hyNh%2F%2FHW6g3fYyiDXsSgaAmIP%2BP>.

[9] Id, 1.

[10] Supra note 4, at 7.

[11] Ibid

[12] Catherine Trautmann, Foreward, Research Handbook on Human Rights and Intellectual Property, Ed. Christophe Geiger, (Edward Elgar 2015) xii-xxiv, xii.

[13] Supra note 7, at 1055

[14] Supra note 7, at 1056