Relationship between Intellectual Property and Human Rights - Essay Example

?A Critical assessment of the relationship between intellectual property and human rights Intellectual Property can be defined as any intangible property which is a creation of mind. The creator of the property requires legal protection of his work which is generally protected through the mechanism of patents, copyrights and trademarks. Intellectual property rights are granted to the creators in order to safeguard their interests so they can reap the potential benefits for their efforts. For instance, patents allow the owner to exclude others from exploiting the invention for a specific tenor. While on the other hand, the idea of human rights has emerged from the need for universal respect of human beings freedom, dignity and equality. It has evolved over the period to support for individual from oppression and provide an equal chance to develop their potential to take advantage of different opportunities (Donnelly, 1989). Human Rights and Intellectual Property rights (IPR) have gained widespread discussion during the last two decades. Various stakeholders who have vested interests have furiously argued for their rights. The goals of the proponents of both the parties are somehow inversely related. Stereotypical views have been formed both about human and intellectual property rights. The advocates of human rights assert that the only way to achieve the goals of access to food, health and education is through eliminating most of the intellectual property rights (Lutheran World Federation, 2000). While on the other hand, a mindset has been developed that promotes that by only expanding the intellectual property rights, we can provide incentives for innovation which will address the concerns of fundamental human rights (Weissbrodt & Schoff, 2008). The relationship between human rights and intellectual property rights can be analyzed from two aspects. The first dimension is concerned with whether IP rights are themselves human rights which the individuals are entitled to enjoy which aims to answer the question that whether IP rights are human rights by themselves. The second dimension pertains to the impact of IP rights on the individual State’s ability to comply with the international human right treaties which stand up for the fundamental rights that is access to food, medicine and education (Sinjela, 2007). Therefore, this relationship can only be analyzed if we have a thorough understanding of the scope of both the rights. The existing human rights do not categorically refer to the intellectual property rights; however, there are certain provisions within the human right treaties which can be considered to be relevant to intellectual property rights. Universal Declaration of Human Rights (UDHR) which was adopted in 1948 has certain provisions which are important points to be considered. The Article 27.2 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” (United Nations, 2007). Similarly, the right to property is also stressed in the Article 17 of UDHR which states that everyone has the right to own property and no one shall be deprived of his property. In addition to that, the International Covenant on Social, Economic and Cultural Rights (ICSECR) established in 1966 is also one of the vital tool through which we can assess the relationship between Intellectual Property & Economic Rights. International rights although increase the scope of relationship between these two rights but there are some regional human rights which contains clauses pertaining to property rights. The Article 21.1 of American Convention on Human Rights of 1969 states that everyone is entitled to the right to use and enjoyment of his property but it further enforces that “The law may subordinate such use and enjoyment to the interest of society” (Sinjela, 2007). Similarly, the African Charter on Human Rights which was adopted in 1981 also enforces that “The right to the property shall be guaranteed while it may only be encroached upon the interest of public need or in the general interest of the community” (Sinjela, 2007). Scholars in the field have reached to two distinct approaches to the relationship between intellectual rights and human rights. The first approach considers the relationship between those rights to be incompatible. The scholars who back this approach believe that intellectual property laws undermine the basic human rights especially that of social, economic and cultural rights. They prescribe that human right should prevail over intellectual property rights in case if conflict arises between the two areas. Many of the experts in the field do not deem intellectual property rights as a form of human right. They argue that IP rights do not come under the category of fundamental human rights since they believe that human rights are of utmost importance and their international protection requires the obligation of international enforcement. They also assert that there is a conceptual problem in considering IP rights as human rights. The reason behind this is that under private and public international law, states are allowed to regulate property rights in order to meet the socio-economic needs. However, fundamental human rights cannot be adjusted based on the particular needs of states. The second approach assesses the relationship in a way to be compatible with each other. They believe that the intellectual property rights can go side by side if the inventors are given sufficient incentive while ensuring that the consumers have adequate access to the fruits of their efforts. The advocates of this approach even quote Article 15 of ICESCR which stipulates that everyone has the right to benefit from the moral and material interests resulting from his creative work (ICESCR, 1966). The article 27.2 of the UDHR has also raised two opposing views with regards to the relationship between intellectual property rights and human rights. One of the mindset argues that IP rights are implicit in the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production for the creator of that work. While on the other hand, it is argued that protection of the moral and material interests cannot be compared with Intellectual property’s protection. This is so because human rights are fundamental, inalienable and universal while on the other hand IP rights can be deemed as statutory rights which are granted by the state and which are temporary in nature and can be revoked. Therefore, this argument infers that IP rights lack the principal characteristics of human rights and should not be considered in this category. Owing to the fact that human rights are essentially different from IP rights but we cannot disregard them from the scope of human rights. It has been seen and argued that the right to food, health and education is undermined due to exorbitant license fees and royalties which arise due to IP protection. The ethical issue of patenting human genes or genetic technology has also been addressed within the scope of human rights and intellectual property rights. The connection between intellectual property rights and human rights within the realm of health is most evident in developing countries. We can easily find the relationship between medical patents and the right to the health especially in the context of HIV/AIDS epidemics. As a controversy was sparked, the ESCR committee took a step and made a verdict on the relationship between human rights and intellectual property rights (Roy, 2010). In the statement, the committee argued that IP law must first serve the right of human well being, thus human rights should be given a priority over the intellectual property rights. The committee categorically mentioned that any intellectual property regime that makes it troublesome for a state to follow the basic rights of food and health would be inconsistent with the legally binding obligation to the concerned state (Roy, 2010). There are few products which are absolutely intangible and can be sold and delivered in an online environment. Software is among one of those few products. The computer software forms the core of the digital revolution. The 1981 case of Diamond v. Diehr was the first case in which Supreme Court of US ordered US patent and trademark office to grant a patent on computer software. The case was related to an invention of a method which calculated how much the rubber should be heated in order to be best suited according to the needs (Sinjela, 2007). Piracy in the software business has negatively affected the growth of the booming software industry. It is approximated that around 11 to 12 billion USD of revenue is lost every year due to the piracy of software’s (Sinjela, 2007). The major problem with software piracy is that it can be easily carried out from any location of the world. The major forms of software infringements include soft-lifting, internet piracy and commercial use of non-commercial software. Soft-lifting means that one buys a licensed copy and uses it on multiple computers which are against the terms of license agreement. Internet piracy refers to when one uploads commercial software which is not a freeware which could be downloaded by anyone from the internet. Although the software providers have copyrights for their software but they are somehow perceived to be against some of the basic human rights. The Article 19(2) of the international covenant on civil and political rights (ICCPR) states that “Everyone shall have the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally in writing or in print, in the form of art, or through any other media of his choice” (ICCPR, 1976). However the next clause also states that it shall be subject to some restriction; for the respect of rights of others and for the protection of national security and public. The issue of copyright seems to be in conflict with this article somehow in the developing nations. Since it costs too much to buy copyright software due to their purchasing power therefore they are deprived of the educational right which is a fundamental human right. Most of the developed countries strongly back intellectual property law as they think that it promotes growth in the economy. On the other hand, the developing nations are against the stringent use of IP laws due to three reasons. Firstly, they reckon that the benefits derived from intellectual property system tend to be long term. Secondly, it increases the cost of development in the short term since most of the patents are granted to foreign multinational corporations and the resulting compensation flows from their country to the developed one. Thirdly, they think that they do not have the requisite infrastructure to support strong IP laws. Biotechnology is also an area of concern where conflicts of interests between IP and human rights law have emerged in the recent era. Biotechnological products tend to boost food productivity and they can be of vital use in agriculture industry. The suitable usage of biotechnology presents a significant prospective to heighten food yield. In the late 19th to early 20th century, the work of Louis Pasteur on the fermentation of yeast and Gregor Mendel’s work on genetics led to this age of modern biotechnology. Modern biotechnology is distinguished by a range of progressive techniques, in which organisms are used to make or modify a product or to change the properties of plants or animals or the development of micro-organisms for other specified purposes. Most common examples are cell fusion, cloning, genetic engineering which is the process of resetting or altering the DNA. Genetic engineering uses the molecular techniques both to identify and shift genes from a cell to another cell (even across species), in contrast to sexual or reproductive means, for the production of genetically modified organisms (GMOs). It has been observed that biotechnology has resulted in substantial health inequality and it will further widen the gaps in health standards between rich and poor countries. In developed countries, products developed from plant genetic resources become a major source of wealth. Biotech products do not come out of thin air but they are developed from the painstaking efforts of their creators. It includes substantial research with the state of the art technology which makes a heavy chunk of capital investment. The statistics show that biotechnology patents represent about one percent of the total number of patents granted worldwide (Correa, 2000). Furthermore, during the last decade the European Union, Unites States and Japan accounted for the 93 percent of biotech patents whereas the developing countries only accounted for 6%. In addition to that, only five US Multinational Companies accounted for 44% of the patents during the period (Correa, 2000). Since these companies assume a lot of risk in making such products they also wish for a high economic reward in return in order to sustain their business. Patents provide a way to protect their processes and they also allow these companies to stimulate investment in this area. If patent protection had not been available, it would have resulted in lower investment in biotech field and thus the benefits of such a efficient technology could not have been reaped. As we have seen that the multinational companies (MNC’s) hold the power over the biotech products through the protection of patents therefore the control the whole food chain. Seed are the first point for any food generation and thus by controlling the supply of seeds, they are able to control their prices making it difficult to buy for developing nations. The strict control of research and development in the hands of these monopolistic powers also disregard the research needs of million in developing nations. The new biotech products are innovated for those who are willing to pay for those products, while the technology is not transferred to developing nations thus making the poor countries to be deprived of such breakthrough products. Another impediment in the way of developing nation is in the theory of bioprospecting and biopiracy. Most of the multinational companies are involved in bioprospecting and biopiracy (Shiva, 2001). Bioprospecting is the process of exploration, extraction and screening of biodiversity and the knowledge of local people to develop biotech products. Biopiracy involves granting patents to the product which were evolved from the indigenous knowledge such as the traditional method of breeding. Local people do not consent to the use of their local knowledge, which results in an invention requiring legal protection. As the product is launched and becomes profitable in the market, these local people are not compensated for their traditional knowledge used in developing the product. The repercussions of bioprospecting and biopiracy are grave in nature. Firstly, they aren’t appreciated for their local knowledge and secondly it reduces the ability of these local people to meet their food and health needs. The patents are granted to MNC’s without the consent of local people thus they end up paying higher prices and royalties for products which were developed from the use of their own knowledge. This is again an example of violation of fundamental human right to food and health. It has resulted in the impoverishment of rural communities and affected the live of billions of people. The introduction of product patents in the health sector has also given rise to deep concerns with regards to conflict between intellectual property and human rights. It has undermined the ability of developing nations to acquire drugs at a low cost thus aggravating the situation. If we have a deep look at the staggering statistics on the AIDS, we will found that developed countries are trampling on the fundamental human rights. The data shows that over forty million people are infected with the chronic disease of HIV/AIDS. Among the sixteen African countries, 10 to 20 percent of the adult population is infected with this disease. AIDS kills more individuals than all other diseases and it has already orphaned approximately thirteen million children worldwide (Taylor, Smith & Andresen, 2002). Given such serious conditions prevailing mainly in the African countries where the per capita income is too low and people cannot afford to have one time of meal; it looks as though they are deprived of all the fundamental human rights. They have placed their hopes in a vaccine but again there are several obstructions in obtaining vaccine to cure this fatal disease. The reality is that almost all the private companies are involved in producing drugs to fight with the disease but the cost associated with developing a vaccine are too high and estimated around $250-$500 million (Taylor, Smith & Andresen, 2002). Furthermore, private companies with the lust of profitability are not investing funds in the area since they see that those countries with the highest demand for such vaccines have the least ability to compensate for their efforts. Without any incentive, it is unlikely that private companies will put their feet in unprofitable areas if it compromises their intellectual property rights. A possible solution for this problem could be to retain to strong intellectual property rights in wealthier nations and reserve the rights in marketing the vaccine in developing countries. Furthermore, the tension has heightened due to the fact that some of the developed countries have restricted the trading of generic drugs through the provisions of TRIPS Agreement. As WTO (World Trade Organization) emerged, it also focused on protecting and governing the aspects of trade related to intellectual property. The agreement on trade related aspects of Intellectual Property Rights (TRIPS) have also been criticized as it sparked a bitter dispute in the contemporary world. TRIPS require that state related parties should implement the minimal requirements for the protection of the intellectual property of both the domestic and foreign inventors. One of the most controversial elements of TRIPs is its mandatory requirement for its member states to make patents available for any inventions in all fields of technology without any discrimination. It is said that TRIPS does not strike a balance that is consistent with human rights approach (Cruz 2005). TRIPS is inherited with potential conflicts as it was realized on August 17, 2000 when United Nation sub commission for the protection and promotion of human rights adopted a resolution on “ Intellectual Property Rights and Human Rights” (Sinjela, 2007). They concluded that TRIPS is a stumbling block in the way to transfer technology to developing countries. Potential conflicts exist in the realization of social, cultural and economic rights due to patenting of genetically modified organisms and biotechnology. It has illicit control over the genetic and natural resources and cultural values of the underprivileged people. The restriction of patented pharmaceutical products has impeded the people to fully enjoy the right to health especially in Africa. It has been observed that there are apparent conflicts between the TRIPS and Human rights since the agreement discriminates on the some grounds and does not allow everyone to enjoy the advantages of scientific development, the right to health, food and self determination. In addition to that, TRIPS regime also raises a conflict between the private and public interests. TRIPS is found to tilt the balance inherent in the IP law away from the public interest to the favor of IPR holders. In the TRIPS agreement the link to human right laws are subject to some restrictions. They are expressed in terms of exceptions to the rule rather than the guiding principle that should shape IP Laws. A human right approach will put all the HR related laws at the heart to accomplish the goals of IP laws. TRIPS states in its preamble that IPR are private rights which implies that it ignores the creativity of groups or communities whereas an human rights approach would recognize an invention to a society for the sake of public interest. Intellectual property rights are active rights but their implementation should encourage and protect all human rights. Human rights shall maneuver the enlargement of intellectual property rights, and thus intellectual property rights would be of benefit to all of humanity. At a time of such spectacular advances in new technologies, it is vulnerable that hunger, malnutrition and poverty still continue since the same technologies can have a huge effect on poverty elimination and generally progress the standard of living of many deprived people in the developing countries, including Africa. There is a necessity to set human concerns and rights at the core of the global governance of technology, which must respect various cultures. Multi-national Companies need to put preventative measure before their profits and restructure technology’s passage to do good to all humanity. For the benefit of rural farmers and promoting the modernization and distribution of knowledge, the respecting of diverse systems of property possession, restoration of the social balance, bringing the paybacks to the masses, empowerment of people, and making it available to those who require it, technology’s path needs to be redesigned and readdressed. References Correa, C. M., 2000. Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options. London: Zed Books Ltd Cruz, R. 2005 Protection of Traditional Knowledge), Available at: [Accessed January 03, 2010) Donnelly, J. 1989. Universal Human Rights in Theory and Practice. London: Cornell University Press ICCPR 1976, International Covenant on Civil and Political Rights. Available at: [Accessed January 04, 2010) ICESCR 1966, International Covenant on Economic, Social and Cultural Rights Available at: >[Accessed January 03, 2010) Lutheran World Federation 2000. International Commission of Jurists to the Sub-Commission on the promotion and protection of human rights. Available at [Accessed January 05, 2010) Roy, A. 2010. Human Rights and Intellectual Property Law in the Globalized Era. Available at: Shiva, V. 2001, Protect or Plunder? Understanding Intellectual Property Rights. London: Zed Books Ltd Sinjela, M., 2007. Human Rights and Intellectual Property Rights: Tensions and Convergences Boston : Martinus Nijhoff Publishers Taylor, A. L., Smith, G. P., and Andresen, J. 2002. Biotechnology, human rights, and intellectual property. American Society of International Law. pg. 114 United Nations 2007, Universal Declaration of Human Rights. Available at: [Accessed January 03, 2010) Weissbrodt, S. & Schoff, K. 2000, Implementation of the International Covenant on Economics, Social and Cultural Rights: Protection of Intellectual Property under the Trips Agreement, WTO Paper Read More