The Raoul Wallenberg Institute, 2007, -303 pp.
The relationship between human rights and intellectual property rights (IPRs) has been a subject of intense discussion during the last two decades among various stakeholders around the globe. The adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at the inteational level and strengthening of intellectual property (IP) protection standards at bilateral and regional levels have intensified discussions on the subject during recent times. There are two angles from which this relationship is analyzed. The first dimension of this relationship relates to the question whether the right to IP protection is part of human rights that individuals enjoy, that is, whether IPRs are human rights by themselves. The second dimension conces the effect that IP rights may have on States’ ability to comply with their obligations under inteational human right treaties, such as the obligation to ensure access to food, medicine and education. It is recognized that the issue of the relationship between human rights and IPRs is of a complex character and requires a thorough understanding of the nature and scope of both rights.
Existing human rights treaties do not make an extensive reference to IPRs. However, the following provisions within human right treaties are relevant to the discussion. The Universal Declaration of Human Rights (UDHR), adopted in 1948, states in Article 27.2 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. In addition to recognizing the right of authors, the UDHR guarantees the right to property. Article 17 states that everyone has the right to own property and no one shall be arbitrarily deprived of his property. The Inteational Covenant on Social, Economic and Cultural Rights (Covenant), adopted in 1966, is one of the most important legal instruments though which the relationship between the two fields can be further explored. It was introduced as a second-generation human rights treaty developing further some of the issues contained in the UDHR. Similar to the UDHR, the Covenant recognizes, for example, everyone’s right to food and health. In addition the Covenant recognizes in Article 15.1 the right of the author to benefit from the protection of the moral and material interest resulting from any scientific, literary or artistic production.
Some regional human rights instruments also contain provisions relating to property rights in general which can also contribute to this discussion. The American Convention on Human Rights of 1969 provides in Article 21.1 that Everyone has the right to use and enjoyment of his property. The provision further states that The law may subordinate such use and enjoyment to the interest of society. The European Convention on Human and Fundamental Freedoms of 1950 provides in Article 1 of its Protocol that every natural or legal person is entitled to the peaceful enjoyment of his possessions. Further it recognizes that the State has the right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. The African Charter on Human Rights and People’s Rights of 1981 provides in Article 14 that The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community.
The issue whether IPRs are a form of property right recognized by inteational human rights instruments is a contentious one. It has been argued by some commentators that IPRs do not belong to the category of fundamental human right, because human rights are of such importance that their inteational protection includes the right or even an obligation for inteational enforcement. For that reason, IPRs as well as most of the other property rights, the argument continues, cannot be considered within this category. Moreover, it has been noted, there is a conceptual problem to including property rights within the category of fundamental human rights. This is because under private and public inteational law, states can regulate property rights, to adjust them to meet social and economic needs. However, fundamental human rights cannot be adjusted on the basis of particular needs of the states.
In addition, the statements contained in Article 27.2 of the UDHR and Article 15.1 of the Covenant, which recognize intellectual contributions in general without making any specific reference to existing IPRs, have raised two opposing views. On the one hand, it is argued that IPRs are implicit in the right to the protection of moral and material interest of authors and the right of property in the UDHR and the Covenant. On the other hand, it is argued that protection of the moral and material interest of authors granted by these provisions cannot be equated with IP protection. This is because human rights are deemed to be fundamental, inalienable and universal entitlements, while IPRs are statutory rights granted by the state which are temporary, can be traded or revoked. Therefore, the argument concludes that IPRs lack the fundamental characteristics of human rights and cannot be regarded as such. Despite the above listed differences between the nature of both rights, a complete exclusion of the IPRs from the realm of human rights seems for some unacceptable. Issues remain as to how far IPRs, if deemed to be within the realm of human rights can go. Would it include the rights of business corporations, or is the right limited to the individual seeking protection for his work?
The immediate relevance of existing IPRs to human rights has been seen from the impact that IPRs may have on the realization of human rights. Thus it has been argued that the realization of the right to food, health and education is undermined by the high license fees and royalties brought about by the present IP protection system. Much discussion has brought the issue of patenting life forms, which involve the issue of human dignity. Thus the ethical issues related to patenting of human genes have been acknowledged. Another example is the introduction of product patent in the health sector, which has given rise to the conce that this would undermine access to essential drugs at low cost and would thus result in a lack of the realization of human right to health in most developing countries. The increase in the number of AIDS effected people has fueled the debate. Moreover, the tension has arisen when some developed countries sought to seek the restriction of generic drugs and parallel imports by invoking the provisions of the TRIPS Agreement. In addition copyright has been blamed for restricting the right to education and freedom of expression, freedom of the press and for free speech.
Introduction
Curbing Software Piracy in eCommerce: Compatibility with Human Rights: Challenges and Possible Solutions
Are Stronger Intellectual Property Rights an Obstacle or a Condition for Inteational Technology Transfer?
A Case Study of the Dual Citizenship Arrangement Between Russia and Turkmenistan
Patent Rights and Access to Medicines: Are Patents Really the Only Barrier for Good Health Care in Developing Countries?
The Disappeared Children of El Salvador – a Field Study of Truth, Justice and Reparation
What Is the Role of Professional and Civil Society Organisations Beyond Inteational Legal Mechanisms of Implementing Human Rights Treaties?
Traditional Knowledge: An Analysis of the Current Inteational Debate Applied to the Ecuadorian Amazon Context
TRIPS and Agricultural Biotechnology: Implications for the Right to Food in Africa
The relationship between human rights and intellectual property rights (IPRs) has been a subject of intense discussion during the last two decades among various stakeholders around the globe. The adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at the inteational level and strengthening of intellectual property (IP) protection standards at bilateral and regional levels have intensified discussions on the subject during recent times. There are two angles from which this relationship is analyzed. The first dimension of this relationship relates to the question whether the right to IP protection is part of human rights that individuals enjoy, that is, whether IPRs are human rights by themselves. The second dimension conces the effect that IP rights may have on States’ ability to comply with their obligations under inteational human right treaties, such as the obligation to ensure access to food, medicine and education. It is recognized that the issue of the relationship between human rights and IPRs is of a complex character and requires a thorough understanding of the nature and scope of both rights.
Existing human rights treaties do not make an extensive reference to IPRs. However, the following provisions within human right treaties are relevant to the discussion. The Universal Declaration of Human Rights (UDHR), adopted in 1948, states in Article 27.2 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. In addition to recognizing the right of authors, the UDHR guarantees the right to property. Article 17 states that everyone has the right to own property and no one shall be arbitrarily deprived of his property. The Inteational Covenant on Social, Economic and Cultural Rights (Covenant), adopted in 1966, is one of the most important legal instruments though which the relationship between the two fields can be further explored. It was introduced as a second-generation human rights treaty developing further some of the issues contained in the UDHR. Similar to the UDHR, the Covenant recognizes, for example, everyone’s right to food and health. In addition the Covenant recognizes in Article 15.1 the right of the author to benefit from the protection of the moral and material interest resulting from any scientific, literary or artistic production.
Some regional human rights instruments also contain provisions relating to property rights in general which can also contribute to this discussion. The American Convention on Human Rights of 1969 provides in Article 21.1 that Everyone has the right to use and enjoyment of his property. The provision further states that The law may subordinate such use and enjoyment to the interest of society. The European Convention on Human and Fundamental Freedoms of 1950 provides in Article 1 of its Protocol that every natural or legal person is entitled to the peaceful enjoyment of his possessions. Further it recognizes that the State has the right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. The African Charter on Human Rights and People’s Rights of 1981 provides in Article 14 that The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community.
The issue whether IPRs are a form of property right recognized by inteational human rights instruments is a contentious one. It has been argued by some commentators that IPRs do not belong to the category of fundamental human right, because human rights are of such importance that their inteational protection includes the right or even an obligation for inteational enforcement. For that reason, IPRs as well as most of the other property rights, the argument continues, cannot be considered within this category. Moreover, it has been noted, there is a conceptual problem to including property rights within the category of fundamental human rights. This is because under private and public inteational law, states can regulate property rights, to adjust them to meet social and economic needs. However, fundamental human rights cannot be adjusted on the basis of particular needs of the states.
In addition, the statements contained in Article 27.2 of the UDHR and Article 15.1 of the Covenant, which recognize intellectual contributions in general without making any specific reference to existing IPRs, have raised two opposing views. On the one hand, it is argued that IPRs are implicit in the right to the protection of moral and material interest of authors and the right of property in the UDHR and the Covenant. On the other hand, it is argued that protection of the moral and material interest of authors granted by these provisions cannot be equated with IP protection. This is because human rights are deemed to be fundamental, inalienable and universal entitlements, while IPRs are statutory rights granted by the state which are temporary, can be traded or revoked. Therefore, the argument concludes that IPRs lack the fundamental characteristics of human rights and cannot be regarded as such. Despite the above listed differences between the nature of both rights, a complete exclusion of the IPRs from the realm of human rights seems for some unacceptable. Issues remain as to how far IPRs, if deemed to be within the realm of human rights can go. Would it include the rights of business corporations, or is the right limited to the individual seeking protection for his work?
The immediate relevance of existing IPRs to human rights has been seen from the impact that IPRs may have on the realization of human rights. Thus it has been argued that the realization of the right to food, health and education is undermined by the high license fees and royalties brought about by the present IP protection system. Much discussion has brought the issue of patenting life forms, which involve the issue of human dignity. Thus the ethical issues related to patenting of human genes have been acknowledged. Another example is the introduction of product patent in the health sector, which has given rise to the conce that this would undermine access to essential drugs at low cost and would thus result in a lack of the realization of human right to health in most developing countries. The increase in the number of AIDS effected people has fueled the debate. Moreover, the tension has arisen when some developed countries sought to seek the restriction of generic drugs and parallel imports by invoking the provisions of the TRIPS Agreement. In addition copyright has been blamed for restricting the right to education and freedom of expression, freedom of the press and for free speech.
Introduction
Curbing Software Piracy in eCommerce: Compatibility with Human Rights: Challenges and Possible Solutions
Are Stronger Intellectual Property Rights an Obstacle or a Condition for Inteational Technology Transfer?
A Case Study of the Dual Citizenship Arrangement Between Russia and Turkmenistan
Patent Rights and Access to Medicines: Are Patents Really the Only Barrier for Good Health Care in Developing Countries?
The Disappeared Children of El Salvador – a Field Study of Truth, Justice and Reparation
What Is the Role of Professional and Civil Society Organisations Beyond Inteational Legal Mechanisms of Implementing Human Rights Treaties?
Traditional Knowledge: An Analysis of the Current Inteational Debate Applied to the Ecuadorian Amazon Context
TRIPS and Agricultural Biotechnology: Implications for the Right to Food in Africa