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Essay: Is intellectual property a human right? Critically discuss

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Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. It is a product of the mind.
Intellectual property policies are in quest to maintain balance of the moral and economic rights of creators and inventors while keeping in mind the wider interests and needs of the society. The existence of an equitable and modernized patent system to incentives for inventiveness and innovative activity, a willingness to invest in industrial applications, and a favorable climate to the transfer of technology is linked by The World Property Organization (WIPO). Human Rights are expressed as a set of prescribed law-based systems and obligations, as well as a combination of normative claims about human flourishing and development. Human rights opinions has its reliance on existing legal as well as evolving standard norms and often use institutions, such as the United Nations (UN), to give these claims the force of law. The documents and institutions that elaborate the human rights system are present at the international, regional, and national levels, and proceedings at one level often have effect over the other. The aim of this discussion is to understand the relation of human rights and intellectual property rights.
The two separate bodies of law, Human Rights and Intellectual Property, that were unknown for quite a long time, are now becoming increasingly intimate bedfellows. For past few decades the relation between human rights and intellectual property is gaining importance. The evolvement of this new-found relationship is being actively studied and sometimes even argued over by states and nongovernmental organizations (NGOs) in international venues such as the World Intellectual Property Organization (WIPO), the U.N. Commission on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights, the World Trade Organization (WTO), World Health Organization (WHO).
Professor Helfer summarizes the two opposing base which are generated by the result argument between intellectual property and human rights by two per spective. The initial perspective explains the deep conflict between human rights and intellectual property. This perspective brings into limelight the strong intellectual property protection as deterrent and therefore becomes contrary with a wider range of human rights obligations, especially in the area of economic, social, and cultural rights.
The recommendation to resolve this conflict of fundamental human right and intellectual property is to recognize the dominant standard norms of human rights law over intellectual property law in areas where specific treaty commitments conflict.
The next perspective to the connection of human rights and intellectual property identifies both areas of law as concerned with the same fundamental issue which is defining the suitable scope of private monopoly power that gives authors and inventors adequate incentive to create and to innovate, though ensuring that the consuming public has adequate access to the outcome of their efforts. This discipline considers human rights law and intellectual property law as essentially attuned, although often inconsistent over where to strike the equilibrium between incentives on the one hand and access on the other.
Additionally, at the heart of the debate on intellectual property rights and human rights which articulates a distinction between individual rights and community rights, three likely interpretations are available. The foremost interpretation is that human rights elements are not present in intellectual property rights, and the later are purely legal rights. The next is that intellectual property rights are human rights, with the prominence on property rights and individual concerns, the last interpretation is that some aspects of intellectual property rights have potentially difficult repercussions for human rights.
The foremost interpretation, that intellectual property rights have no human rights element and are solely legal rights appears to be faulty, while considering copyrights, the solemn declaration by the States members of the Assembly of the Berne Union for the Protection of Literary and Artistic Works, 1986, asserted clearly and unambiguously that ???copyright is based on human rights and justice and that authors, as creators of beauty, entertainment and learning, deserve that their rights in their creations be recognized and effectively protected both in their country and in all other countries of the world???.
With respect to the next interpretation, namely that intellectual property is human right and is essentially the same as property in tangible assets, it must be secured by the same legal guarantees, it must therefore be declared that the protection of intellectual property rights has long been recognized as a basic human right and those concerned about human rights made a conscious and concerted effort to ensure that intellectual property rights were protected. This is the basis for arguing that provisions made by international human rights documents with regard to property cover intellectual property, with the latter elevated to the status of ???fundamental rights???. Foremost amongst the international human rights documents that are often claimed to regard the right to own property as including the right to own intellectual property are the Universal Declaration of Human Rights and the United Nations International Covenant on Economic, Social and Cultural Rights.
The last interpretation of intellectual property rights and human rights, namely that some aspects of intellectual property rights have potentially adverse implications for human rights, the report of the High Commissioner on Human Rights on the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on human rights of 27 June 2001, acknowledged that Article 15 ICESCR identifies a need to balance the protection of both public and private interests. It is notable that the Charter of Fundamental Rights of the European Union acknowledges the tensions between private rights and public interests. Article 17 of the Charter states that: ???(1) Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.??? Article 17 goes on to state explicitly that: ???(2) Intellectual property shall be protected???. The drafting committee responsible for the Charter of Fundamental Rights of the European Union commented on sub-paragraph (2) as follows: ???Protection of intellectual property, one aspect of the right of property, is mentioned explicitly in paragraph 2 because of its growing importance and Community secondary legislation . Not only literary and artistic property but also patent and trademark rights and associated rights are covered by intellectual property. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual property???.
Right to Intellectual property was included in Article 1 of Protocol 1 of European Convention on Human Rights which states, ???(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.???
Within the last few years, the ECHR has issued a series of decisions holding that patents, trademarks, copyrights, and other economic interests in intangible knowledge goods are protected by the European Convention’s right of property. The most discussed of these rulings in a 2007 judgment of the Grand Chamber in Anheuser-Busch Inc. v, Portugal-is exceptionally remarkable. The analysis in Anheuser-Busch suggests that the ECHR recognizes the broader human rights implications of the region’s innovation and creativity policies and that its future rulings may influence intellectual property protection standards in Europe.
An inherent balance between the rights of inventors and creators and the interests of the wider society within intellectual property models is often articulated by a human rights approach to intellectual property which makes it far more explicit and exacting. The relationship between human rights and inventions has been in the light of debate over past several years. The International Covenant on Economic, Social and Cultural Rights (ICESCR) is one of the major international human rights instrument addressing these issues. Article 15 specifies that States Parties, that is the countries that have ratified or acceded to this instrument, ???recognize the right of everyone??? both ???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.??? To achieve these goals, the Covenant mandates that States Parties undertake a series of steps. These include ???those necessary for the conservation, the development and the diffusion of science and culture.??? More specifically, States Parties ???undertake to respect the freedom indispensable for scientific research and creative activity.??? Further, States Parties make the commitment to ???recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.???
This debate refined in 2006 by the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment No. 17. This authoritative interpretation of Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) made clear that not all attributes of intellectual property rights have human rights status. As it explained in great depth: Human rights are fundamental as they are inherent to the human person as such, whereas intellectual property rights are first and foremost means by which States seek to provide incentives for inventiveness and creativity, encourage the distribution of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific, literary and artistic productions for the benefit of society as a whole.
In disparity to intellectual property rights, human rights are generally of a permanent nature, and cannot be revoked, licensed or assigned to someone else. While under most intellectual property systems with the exception of moral rights, intellectual property rights, may be allocated, limited in time and scope, traded, amended and even forfeited, human rights are everlasting lexis of fundamental entitlements of the human person. Whereas the human right to benefit from the protection of the moral and material interests resulting from one???s scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living, intellectual property regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material interests of the author provided for by article 15,paragraph 1(c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.
It is therefore crucial not to associate intellectual property rights with the human right recognized in article 15, paragraph 1(c).
The allocation of rights over intellectual property has significant economic, social and cultural consequences that can affect the enjoyment of human rights???.
The Universal Declaration of Human Rights recognizes intellectual property as a universal human right. Article 27 of the Universal Declaration of Human Rights, designates intellectual property as a universal human right: “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???. It implies that, similar to the ownership of property, people also have an exclusive right to their ideas, creations, and inventions. In practice, the United Nations is charged with the administration of various international agreements pertaining to intellectual property. United Nation???s position on intellectual property and its duty to carry out agreements promoting universal intellectual property protection are incompatible with other important goals, particularly the promotion of human physical well-being.
The non recognizing of the hierarchy of intellectual property by the United Nations often challenges the declaration of intellectual property as a universal human right within the framework of physical well-being as established the Article 27 of UDHR. The position and importance given to registered trademark for a multinational corporation as same as that to a patent for medicinal purpose by UDHR has attracted various challenges emphatically by the developing nations with the issue again centered around the profits versus physical well-being argument.
???The question whether intellectual property rights are fundamental human rights and the standard norms and limits of such rights have acquired global status in the wake of the World Trade Organization’s (WTO) adoption of the TRIPS agreement in 1994 as well as the development of the subject matter of intellectual property rights. The TRIPS agreement has scaled up the intellectual property regime to a global level by forcing the adoption of minimum international intellectual property standards on developing and developed countries alike.
The relationship between human rights and intellectual property rights was the topic of question during the drafting of the covenant. Eventually, it came back in limelight only when the developing countries in the context of their implementation of the TRIPs agreement faced problems. In the past few decades, different bodies have addressed these issues. The Sub- commission on Human Rights has for instance come to a conclusion that, since the implementation of the TRIPs Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, and the right to health, the right to food, and the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.
Developing nations having very less resources for inventiveness and access to innovators ideas were reluctantly pressured into signing up of the TRIPS Agreement attracting criticisms for the TRIPS. The TRIPS Agreement has also provoked criticisms from international agencies working on health and development. The danger and fear is that global entrenchment of international rights through TRIPS will primarily benefit rich countries at the expense of developing countries and infringe on the fundamental rights to health, food, and education of the poor.
One of the first court decisions to use human rights language expressly to compel a finding in an intellectual property law case was a 2002 patent challenge in front of the Thai Central Intellectual Property and International Trade Court. Thailand has a civil law system, but the contents of its laws were greatly influenced by those of common law countries like Great Britain. In the patent challenge, the plaintiffs used human rights arguments in a very discrete and narrow fashion: to prove that they had the legal standing necessary to bring the case. The defendants contended that because the two HIV-positive patients and the AIDS Access Foundation had no intention of manufacturing the HIV medication at issue and could use other HIV medications to treat the virus, these plaintiffs did not suffer a cognizable injury. Using human rights arguments regarding the right to health and life, the court rejected the defendants??? position:
Medicine is one of the fundamental factors necessary for a human being, as distinct from other products or other inventions that the consumer may or may not choose for consumption. The treatment of life and the health of the human are of utmost importance than any other property. This was recognized internationally in the 4th Ministerial Meeting of the World Trade Organization at Doha, Quatar . . . . Therefore, the injured parties from the grant of Patent are not limited to the manufacturers or the sellers of the medicine protected by the Patent. The court???s powerful articulation of the supremacy of the right to health set an important precedent. The court used human right arguments to inform its interpretation of a legal standard at issue in this patent case and, in doing so, articulated a position firmly in favor of access. The court???s reference to the Doha Declaration and TRIPS Agreement to support its position also holds significance. Through this citation, the court asserted the compatibility of its position with international IP right obligations.
. In 2008, the High Court of Delhi, India in the case of F.Hoffman- LA Roche AG v Cipla Ltd found that the public???s interest in a particular medication must be taken into account when deciding whether to issue a preliminary injunction. After reviewing international precedents, such as the U.S. Supreme Court???s eBay v. MercExchange decision, the court concluded that ???unlike in cases involving infringement of other products, the Courts have to tread with care when pharmaceutical products and more specifically life saving drugs are involved. In such cases, the balancing would have to factor in unknowns such as the likelihood of injury to non- parties and the potentialities of risk of denial of remedies.??? The court further explained that, although ???India entered into the TRIPS regime, and amended her laws to fulfill her international
obligations,??? the Court cannot be unmindful of the right of the general public to access life saving drugs which are available and for which such access would be denied if the injunction were granted. The degree of harm in such eventuality is absolute; the chances of improvement of life expectancy; even chances of recovery in some cases would be snuffed out altogether, if injunction were granted. Such injuries to third parties are un-compensable. Another way of viewing it is that if the injunction in the case of a life saving drug were to be granted, the Court would in effect be stifling Article 21 which protects the right to life so far as those who would have or could have access to Erlotinib (cancer drug ) are concerned.
It is very well observed that the patented products are very expensive as compared to the generic version of such patented products. Intellectual property rights often lose its credibility in front of Human Rights. The States of the world consider public interest and often take this defense as against the intellectual property right holders. The States discuss the TRIPS agreement and the Doha Declaration and the effect of those agreements on the ability to set its own public health policies. The agreement about the protection of intellectual property does not signify an obstruction to the member country to take measures to protect public health and, particularly, the promotion of medication for all.
In the current scenario, there are is an alarming need for legal protection of intellectual property rights. First, the progress and well being of humanity rests on its capacity for new creations in the areas of technology and culture. Second, the legal protection of these new creations encourages the expenditure of additional resources which leads to further innovations. Third the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality enjoyment of life.
The high standards for intellectual property protection and enforcement incorporated into various International and Regional Agreements on human rights have raised significant tension between the intellectual property and human rights systems. The impact of human rights on Intellectual property rights and whether intellectual property rights are human rights have never been addressed directly. With the changing era and need for protection of both the intellectual rights and human rights individually as well as their inter connectivity, various covenants and adoption of treaties have tried and solved these specific difficulties of the impact of intellectual property rights and human rights. The adoption of TRIPS Agreement in various developing is yet facing specific difficulties, especially when it comes to medical drugs and the fundamental right to health. It can thus conclude that the progressive strengthening of intellectual property rights if limits the access to drugs it will directly go against the agreements made by the states under ICESCR, which aims at maintaining and protecting the fundamental human right to health. To achieve the goal of obtaining social dimensions of intellectual property, in accordance with international human rights, commitment of all the member states of ICESCR is an utmost important step. Some provision of these organistaions though attributes the protection of property rights which have Human Rights status the other provisions give considerable importance only to Human Rights. In the era of modernization if the intellectual property rights are given Human Rights status it will infringe the Human Right of the property holder. The property holder incurs cost and time to acquire the right over its innovative and inventive product and giving Human Right status to such products will demoralize and will refrain the inventor from creating a new product which the society shall need at large. Thus it can be concluded that the strengthening the Human Rights status on Intellectual Property is crucial but not at the cost of development of Intellectual Property.

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