BY
AISHA OYAREKHUA
INTRODUCTION
From time immemorial a lot of importance has always been attached to property being one of the oldest institutions of human civilization. The philosophical bases for protection of private property are well entrenched in most cultures where it is widely recognized that people may real property and tangible objects. The Common law, Civil law and most constitutions in various countries protects private properties against takings by government or other individuals without just compensation.[FN1] The early enlightenment theories claim that property rights emanated from natural rights of man. The philosopher John Locke stated that “Though the earth and all inferior creatures be common to all men, yet every man has a ‘property’ in his own ‘person’. This nobody has any right to but himself.The ‘labour’ of his body and the ‘work’ of his hands, we may say are properly his.Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own and thereby makes it his property…”. [FN2] This view of absolute private property centered on an individual has however been largely criticized.
Legal protection for intellectual property evolved much later in the development of human society and its importance cannot be over emphasized. IP has become very significant in international transactions and the rights derived from IP has become one of the hottest topics in debates around the world with diverse views, opinions and perspectives from different countries and interest groups. Some of the major topics include whether strong IP rights will forestall innovation?, infringe on fundamental human rights ?or further impoverish under developed and developing countries. The developed countries like the United States and Japan are clamoring for higher protection for IP rights while the developing countries are resisting stronger IP rights as they believe this will make them subservient to the developed countries because they do not have enough knowledge, funds and technology to make inventions that can be protected by IP rights. This paper attempts to show the relationship between IP and human rights and some of the arguments on both sides.
DEVELOPMENT OF INTELLECTUAL PROPERTY LAW
Like most areas of international law, the basic principle governing international relations in the field of intellectual property is territoriality. Each nation’s intellectual property law has effect within that nation’s boundaries but have little effect outside them; because of this principle of territoriality there is actually little “international law” in the field of intellectual property. However there are a good number of treaties and international conventions by which different nations obligated themselves to provide intellectual property protection for the benefit of foreign nationals and observe certain minimum norms of protection.
The oldest and most important multilateral treaty on intellectual property is the International Convention for the protection of Industrial Property originally signed at Paris in 1883, and better known as the Paris Convention, which covers patents, industrial designs, trademarks, trade names, service marks, collective marks and unfair competition. Virtually all the world’s industrialized and many developing countries are parties to it.
The most patent related matters dealt with in the convention concerned national treatment, the right of priority, and rules relating to local manufacturing. National treatment is the right of foreign citizens to be treated the same as nationals with respect to legal rights and remedies. National treatment was and continues to be one of the pillars of international intellectual property law. Since 1883 the Paris convention has been revised six times, most recently in 1967, and its membership has expanded tremendously including countries which joined in large numbers during 1960s and 1970s. [FN3]
In the late nineteenth century following the vast output of literary and artistic works in countries like France and Britain, authors became victims of large scale copying in foreign countries and the government of these countries were reluctant to give foreign authors and artists equal treatment under the law. Like the Paris convention the initiative to produce a multilateral treaty was taken by those who stood to benefit directly from enhanced international protection of literary and artistic works, in this case authors, publishers, lawyers and representatives of literary and publishers societies. This led to the Berne convention for the protection of literary and artistic works, which was adopted at a diplomatic conference in 1886 by representatives of Germany, Belgium, France, UK, Tunisia, Spain, Italy, Liberia, Haiti and Switzerland. The United Staes and Japan were represented by observers.
The main tenets of the Berne convention are national treatment, minimum levels of protection for the author, and the removal of any dependence on registration or other formalities in order to enjoy and exercise rights provided. Since 1886 the Berne convention has also been amended six times to keep pace with the emergence of new technologies. The United States however did not become a part of the convention until 1989.[FN4]
A major weakness of the Berne convention was the limited nature of its application to authors and not owners of related rights such as performers, film producers and broadcasters. These parties finally obtained international rights regime under the 1961 Rome convention for Protection of Performers, Producers of phonograms and Broadcasters.
Challenges to existing methods of international intellectual property law making are becoming more prevalent and more pointed. These challenges increasingly target the 1994 Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) which unfolded into the World Trade Organization (WTO) an enhanced set of patent, copyright, trademark and other private rights of intellectual property owners. Unlike prior intellectual property agreements which were limited to a set of rules with anemic enforcement, TRIPS contains detailed comprehensive substantive rules and is linked to the WTO’s comparatively hard edged dispute settlement systems in which treaty bargains are enforced through mandatory adjudication backed up by threat of retaliatory sanctions.[FN5]
RELATIONSHIP BETWEEN IP AND HUMAN RIGHTS
International law recognizes that there is a relevant nexus between human rights and intellectual property. As a type of property right, intellectual property rights are within scope of human rights but, IP rights are private rights which are owned by a group of people, while human rights are universal and enjoyed by people all over the globe, thus conflict between both are unavoidable.
The human rights system as embodied in the Universal Declaration on Human Rights (UDHR), the International Covenants on Civil and Political Rights (ICCPR) and on Social, Economic and Cultural Rights (ICESCR) and the various regional and thematic instruments can be considered a global agreement of common ideals and shared values, committing states by international customary or treaty law. It has vitally contributed to shaping the world order after the Second World War, thus providing an adequate basis to deal with the far-reaching changes the establishment of the information society is about to bring.[FN6]
The relationship between intellectual property and human rights as laid down in Article 27 of the UDHR and Article 15 of the ICESCR is twofold. Both articles provide for “the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, but at the same time “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”. This embraces the authors’ rights to the protection of their work from unauthorized use as well as the public’s right to benefit from scientific and cultural progress.[FN7]
However with the rise of the information society, the need to recover the highly sensitive balance between these two human rights has become necessary, considering both economic and social interests.
RIGHT TO MEDICINE
Prior to the TRIPS agreement, the emphasis in international IP had been on providing affordable drugs to poor developing countries; but the TRIPS agreement introduced minimum standards for IP protection for all WTO members. The implication of these minimum standards was the possibility that drug companies could increase drug prices and poor countries would not be able to afford it. This caused a lot of conflict between patent rights and the urgent need for access to affordable drugs especially in nations that are experiencing an AIDS crisis. There is now a general consensus that there is important to balance the need for IP rights and the need for access to affordable health care. [FN8]
This and other human rights issues made the U.N human rights system to pay more attention to TRIPS in 2000. The sub-commission on the Promotion and Protection of Human Rights declared that” there are apparent conflicts between the intellectual property regime embodied in TRIPS Agreement…. and international human rights law” [FN9] It saw negative effects in the following areas:
- technology transfer to developing countries
- the consequences for the right to food of plant breeder’s rights and patenting of genetically modified organisms
- bio piracy
- impact on the right to health from restriction on patented pharmaceuticals
- control of indigenous communities’ natural resources and cultural values
This declaration called on a wide array of actors which includes governments, intergovernmental organizations, including WIPO, the World Health Organization, the United Nations Development programme, United Nations Conference on Trade and Development and NGOs to take up a critical examination of TRIPS.5 As a follow up of this declaration, the High Commissioner for Human Rights offered a critical examination of the Trips Agreement and provided the following observations:
(a) TRIPS Agreement is geared towards promoting innovation through the promoting innovation through the provision of commercial incentives thereby making issues of public health, nutrition, environment and development exceptions to the rule rather than being the guiding principles themselves.
(b) Although TRIPS identifies the need to balance the rights with obligations, it however leaves no guidance as to how to achieve this balance.
(c) Thirdly, because of the required minimum standards, the TRIPS Agreement has taken away a high degree of autonomy and this lack of autonomy in turn, may affect the State’s right to development.
(d) The protection contained in TRIPS Agreement focuses on forms of protection that has developed from industrialized countries and as a result less developed countries are required to offer protection that does not take into account their local needs, interests and conditions.
(e) Limited attention has been devoted to the protection of “cultural heritage and technology of local communities and indigenous people especially the growing concern about the use of pressure to impose the TRIPS-plus Agreement which could result in IP systems that are inconsistent with State’s responsibilities and human rights law.[FN10]
The UN declaration also led to the adoption of the Doha declaration in November 2001, which recognizes the gravity of public health problems on developing countries especially those resulting from HIV/AIDS, malaria, tuberculosis and other epidemics. It affirmed that the TRIPS agreement should be interpreted and implemented in a manner supportive of WTO’s members’ right to public health and in particular promotes access to medicine.[FN11]
The declaration allows any member state in need of generic drugs to have access to them under compulsory licensing. Compulsory licensing refers to the practice by a government to authorize itself or third parties to use the subject matter of a patent without the authorization of the right holder for reasons of public policy.[FN12] The purpose is to alleviate epidemics in developing countries that cannot manufacture their own medicines. Pharmaceutical companies however have legitimate concerns about this declaration as there is neither legal qualification to prevent abuse nor are there clearly defined grounds for compulsory licensing.[FN13]
A few years after the release of the High Commissioner’s Report, the Committee on Economic, Social and Cultural Rights issued an authoritative interpretive comment on article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR); a provision that requires each State party to the covenant to recognize the “right of everyone to benefit from the moral and material interests resulting from any scientific, literary or artistic production of which he (or she) is the author”. As the comment stated:
“Ultimately, intellectual property is a social product and has a social function .States parties thus have a duty to prevent unreasonable high cost to access to essential medicines, plant seeds or other means of food production, or to schoolbooks and learning materials from undermining the rights of large segments of the population to health, food and education. Moreover, States parties should prevent the use of scientific and technical progress for purposes contrary to human rights and dignity, including right to life, health, privacy, e.g. by excluding inventions from patentability whenever their commercialization would jeopardize the full realization of these rights” [FN14]
According to the interpretative comment, the private right of authors should not be unduly favoured and the public interest in enjoying broad access to their production should be given due considerations.
BIO-DIVERSITY
Another way in which IP rights conflict with human rights is in the area of conflict is Bio diversity (CBD). The Convention on Biological Diversity which many less developed countries are parties to have as part of its objectives “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilization of generic resources”
Professor Laurence Helfer has explained that the origin of the convention stemmed from the diverging positions taken by developed and less developed countries. He stated that why “bio-diversity rich but bio-technology poor developing countries sought financial benefits for technology transfers and as incentives to conserve rather than exploit the generic resources within the borders; bio-diversity poor but bio-technology rich industrialized states sought to minimize the benefits and transfers while maximizing access to those resources”.[FN15]
Article 8(j) of the CBD provides:
“….respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity to promote their wider application with the approval and involvement of holders of such knowledge, innovations and practices, and encourage equitable sharing of the benefits arising from the utilization of such knowledge, innovation and practices”.
The conflict in executing both the TRIPS agreement and the CBD convention arises from the above provision. The CBD allows developed CBD States to transfer technology to less developed countries on terms consistent with effective protection of IP rights. NGOs have expressed concern about the adverse effects of the TRIPS agreement on the CBD and have sought to harness intellectual property rules by promoting compliance with the convention.
The less developed countries have proposed that patent applicants should disclose their compliance with access and benefit-sharing requirement under the relevant natural laws. Although it has been opposed by developed countries like Japan, expressing fear that it would destabilize the existing international patent system. The benefits of the proposal if approved includes:
- It will promote coherence between policies that seek to implement the CBD and the TRIPS agreement.
- It will develop a linkage between the TRIPS agreement and the CBD, thereby encouraging members that are not yet parties to join.
- It will help safeguard the protection of the intangible cultural heritage of more than 100 countries that are now parties to the convention.[FN16]
RIGHT TO FOOD
Food and Agriculture is another area of intersection between human rights and IP rights. On the one hand there are strong interest groups advocating for incentives to protect plant breeders and rules that affect ownership and transfer of plant generic resources; while on the other hand there are serious concerns about the need for farmers to re-use seeds. After years of contentious negotiations a new international treaty on Plant Generic Resources for Food and Agriculture was adopted. The treaty recognizes:
“the enormous contribution that the local and indigenous communities and farmers of all regions of the world particularly those in the centers of origin and crop diversity, have made and will continue to make for the conservation and development of plant and generic resources which constitute the basis of food and agricultural production throughout the world”
The treaty further requires member States to “establish a multilateral system which is sufficient, effective and transparent. Although the new treaty struck a compromise by recognizing intellectual property rights in some plant generic resources while promoting free access to others such as raw plant generic resources and those in International Seed Banks, the enormous push for farmers’ right is likely to boost the protection of traditional knowledge and cultural expression.[FN18]
RIGHT TO INFORMATION
With the emergence of the internet and other communication technologies, WIPO has taken interest in information and communication as intellectual properties. It is working on developing internet treaties, but much more than that it emphasized at the World Summit on the Information Society (WISS) held in Geneva in 2003; the widening digital gap between developed and less developed countries and global importance of access to information and knowledge. Paragraph 42 of the Geneva Declaration provides:
“Intellectual property protection is important to encourage innovation and creativity in the information society. Similarly, the wide dissemination, diffusion and sharing knowledge is important to encourage innovation and creativity, facilitating meaningful participation by all intellectual property issues and knowledge sharing through full awareness and capacity building is a fundamental part of an inclusive information society”
Although it is necessary to have IP laws to protect and regulate information and communication, the focus really should be on bridging the widening digital gap between developed countries and developing countries.
By advocating these human right of access, IP skeptics seek to create a conflict with intellectual property rights, which give their owners the right to control and exclude others: from medicine, in the case of pharmaceutical patents, and from knowledge in the case of copyright. Since advocates view “human rights obligation” as having “primacy” over economic policies and agreement, then it should naturally follow that intellectual property rights are secondary, to be treated as limited exceptions. [FN19]
Helfer has also identified two approaches to the human rights-intellectual property interface. The first approach views human rights and IP as being in fundamental conflict. This framing he says sees IP protection as undermining and therefore incompatible with a broad spectrum of human rights, especially in the area of economics, social and cultural rights. Proponents of this approach are advocating that the way to resolve this conflict is to recognize the normative supremacy of human rights law over intellectual property law in areas where they conflict.
The second approach sees both areas of law as concerned with the same 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. This school of thought views human rights and IP law as essentially compatible, although often disagreeing over where to strike the balance between incentives on the one hand and access on the other hand.[FN20]
This second approach relates to the TRIPS Agreement, it has been argued that trade negotiators were largely unaware of the possible repercussions when the issue of intellectual property rights was linked with global trade during the Uruguay round trade negotiations that culminated in the 1994 Agreement establishing the World Trade Organization, annexed to which was the TRIPS Agreement. Far more attention was paid to the need to satisfy pharmaceutical and entertainment industries than to ensure an intellectual property regime that was good with human rights in the areas of health, education, access to information, food, security and general interests of developing countries. [FN21]
TRIPS proponents like the United States, Japan and the European Communities argue that a uniform set of relatively high standards of protection fuels creativity and innovation attract foreign investment and encourage a more rapid transfer of technology. These proponents defend TRIPS as part of the WTO package deal in which developing countries receive freer markets of industrialized nations in exchange for their agreement to protect the IP rights of foreign nationals.[FN22]
According to Nobel laureate in economics, Joseph E. Stiglitz:
“I suspect that most of those who signed the agreement did not fully understand what they were doing .If they did would they have willingly condemned thousands of AIDS sufferers to death because they might no longer be able to get affordable generic drugs? Had the question been posted this way to parliament around the world I believe that TRIPS would have been soundly rejected” [FN23]
Stiglitz noted that although IP is important, but the appropriate IP regime for a developing country is different from that for an advanced industrial country; TRIPS failed to recognize. In fact IP should never have been included in a trade agreement in the first place, at least partly because its regulation is demonstrably beyond the competence of trade negotiators.[FN24]
Robert Sherwood has also made some observations about the TRIPS Agreement, firstly, that the agreement is largely irrelevant to what really matters in developing countries; this is because intellectual property was seen as a bargaining chip instead of being analyzed as part of a country’s infrastructure for economic development. In his research he observed that there are inventive people everywhere but that these natural resources can only be mobilized where the national intellectual property system in a country is vigorous and not by merely being TRIPS compliant.
Secondly, that notwithstanding TRIPS compliance, intellectual property remains largely a fantasy in most developing countries and will remain so for years. This he attributes to the fact that eighty percent of the countries of the world are not up to the task of supporting intellectual property rights due to weakness in their judicial systems. He however recommends education of judges about the concepts of intellectual property and developing a reference catalogue of the tools judges need to effectively defend intellectual property rights. This would include things like precautionary measures, authority to order seizures to preserve evidence and some description of minimum sanctions with different effects.[FN24]
The third observation is that in spite of the great deal of discourse, alarmingly there is still very little known about the actual effects of intellectual property on the activity patterns of developing Countries. He however recommends that more attention should be paid to empirical studies of effects of intellectual property in developing countries.[FN25]
CONCLUSION
Innovations and inventions are very significant to the economic prosperity of a nation and ass such should be encouraged by putting the relevant laws in place.
Taking a look at the TRIPS agreement and the circumstances by which it came into effect reminds me of the biblical account of Esau and Jacob; where the former gave up his birthright for a meal just because he was hungry. Developing countries are like Esau, most of their citizens are hungry, sick, poor and needy and so they have that at the back of their mind when they are negotiating. Developing countries will sign any agreement or agree to terms just to alleviate the sufferings of their citizens. The developed countries on the other hand are aware of this fact and so they take advantage of the situation to get them to sign these agreements in exchange for technology, medicine etc. Developed countries are not really as interested in the development of developing countries as they are in using them to achieve their main objective of protecting their intellectual property. The problem however is not in signing agreements or being parties to international treaties, the problem is in enforcement of these rules as developing countries find it difficult to meet up with their own obligations under the agreement as doing so most times will not be in their best interest.
Another problem I have observed is that the developing countries are not made part of the law making process so their peculiar circumstances and interest are being considered in the process of making these laws. A country is more willing to enforce a law that it was part of the law making process because there would have been opportunity to negotiate and also make contributions that will be favourable to it. I agree with Sherwood that there is very little study to find out the impact of intellectual property in developing countries, the reason for this is simply that that the developed countries are not particularly interested in the development of the poorer countries but simply need the to help safe guard their intellectual property.
I am of the opinion that a developing nations will naturally not be in interested in developing their intellectual property laws until they start to have their own inventions and innovations, that way they will have something to protect. To have effective international intellectual property laws, the developed countries have to act as “big brothers” by assisting and encouraging developing countries to invent and innovate so they can also have what to protect with IP laws.
Finally I do believe that the human rights perspective should prevail. There is no disputing the fact that authors and inventors have recognized rights but these rights do not exist on equal footing with human rights like right to food, and medicine.
FOOTNOTES
FN1. Thomas A. Lipinski & Johannes J. Britz, Rethinking the ownership of information in the twenty first century, issue 2 (Ethics and Technology 2000)
FN2. See John Locke, Two treaties on government, (3rd Ed 1968)
FN3. Graham Dutfield & Uma Suthersanen, Global Intellectual property law (Edward Elgar publishing 2008) pp 25
FN4. Id at 27
FN5. Laurence R. Helfer. Regime shifting: the TRIPS agreement and the new dynamics of international intellectual property law.
FN6. Catrin Pekari, Intellectual property and human rights development: where to after the first WISS?
FN7. See Lipinski supra at 49
FN8. Mark F. Schultz & David B. Walker, How intellectual property became controversial: NGOs and the new IP agenda
FN9. Melissa McClellan, “Tools for success”: the TRIPS agreement and the human right essential medicine (Washington and lee journal on civil rights and social justice 2005)
FN10. Peter k. Yu, A tale of two agenda’s Vol 13,Ohio Northern University Law Review, pp 523.
FN11. Mier Perez Pugatch, Intellectual property debates: perspectives from law, economy and political economy 2006.
FN12. Schultz supra at 83
FN13. Id
FN14 Yu supra
FN15. Schultz Supra at 86
FN16. Yu supra
FN17. Id
FN18. Id
FN19. Scultz supra
FN20. Laurence R. Helfer, Human rights and intellectual property review 2003
FN21. Id
FN22. Helfer supre
FN23. Dutfield at 12
FN24. Id
FN25. Robert M. Sherwood, Global aspects of intellectual property in technology transfer, vol 42.
FN26. Id