TO BE PRESENTED
The Right Approach to Intellectual Property Rights
By Craig W. Griffin
I. Introduction
A frail mother, disheveled in appearance and wearing only tattered, moth-eaten clothing, stumbles down the sidewalk beneath the orange glow cast downward the low-pressure sodium streetlamp buzzing above her head. Hunched over as if she were carrying some invisible burden on her shoulders, she glares hungrily at the bread and pastries inside a store. The large plate glass window is but an invisible barrier between her and the nourishment she needs not only for herself but for her two children who lay at home on the floor too weak to move.
Somewhere else halfway across the world, an eight-year-old boy is diagnosed with HIV. His prognosis is bleak, for he lacks the means to acquire life-saving drugs which will keep the virus under control and allow him to live a relatively normal life. Instead, with his immune system under assault, he will likely fall prey to an illness to which his body cannot mount any adequate defense. Like the frail mother, he faces that invisible barrier between himself and his cure, although the obstacle he faces is not a glass window but a blockade even more invisible but potentially harder to overcome—intellectual property rights.
This paper explores the tensions that exist between intellectual property rights and the so-called human rights that increasingly are asserted in negotiations regarding international intellectual property treaties. Namely, it asks the question of when, if ever, the need of others for items required for basic sustenance should be able to overcome basic property rights. In looking at this issue, this paper compares and contrasts the fundamental justifications for both physical and intellectual property rights. Upon this foundation, the determination is made that the justifications and policies underlying intellectual property rights are sufficiently different from those supporting physical property rights to bring about the realization that intellectual property rights are not true, fundamental, inviolable rights at all. Neither, however, are asserted human rights such as the right to human health properly classified among inalienable rights. Stripped of the semantics that otherwise proliferate and cloud typical debates about intellectual property and human rights, the trade-off becomes a simple policy choice between legitimate objectives, one which much necessarily be determined based on the totality of all circumstances that face a particular sovereign.
II. Background
A. The Basis of Property Rights
Three major rationales for the protection of property rights exist, namely the natural rights perspective, the personhood perspective, and the utilitarian or economic incentive perspective.1 The first of these views is based on the work of philosopher John Locke in his famous Two Treatises on Government.2 In that work, Locke advocates the position that people are entitled to the fruits of their own labors.3 He bases this position off of the premise that each person is his or her own property, and nobody else has any valid claim to him or her.4 Hence, an individual is entitled to the benefit of his or her own labor.5 Likewise, when that person uses his or her labor upon some object which, being in a natural state, belongs to no individual, he or she acquires a property interest in that object since the person's labor is now inextricably linked to that object.6 Although this rationale was developed in relation to tangible property, its underlying assumptions have been argued to be applicable to intellectual property as well.7
The second perspective touted as justifying the existence of intellectual property rights is the personhood perspective.8 This ideology holds that property is inherently bound up with the very essence and nature of mankind.9 In particular, property may be tied to a person via an emotional connection that transcends the functional or market value of the property itself.10 This tie between the person and the object results from the person exerting his or her will, preference, and capacities over the external world to instill in it some value beyond the fungible and functional nature of the object itself.11 The personal nature of this property varies in degree with the strength of the connection on a continuous scale.12 In short, the object comes to define a part of the person since the person is merely an abstraction, a concept of free will that only is only realized upon affecting the outside world.13 Extending this view to intellectual property is not a surprising leap, for the creations of one's mind are oftentimes more greatly identifiable with the person than tangible property would be.14
Finally, the most widely held justification for intellectual property rights is the one that finds itself enshrined in the language of the United States Constitution—the utilitarian or economic perspective.15 Pursuant to this view, intellectual property rights are not natural rights that are inherent and inalienable; instead, they are merely useful mechanisms for promoting investment and economic development.16 In particular, intellectual property rights serve as a trade-off made between an individual creator and the broader public as represented by its government. Basically, the public allows the creator to have the privilege of a monopoly over his or her creation for a set amount of time.17 By granting this right, though, the public makes developing new ideas more economically appealing than they would otherwise be in the absence of intellectual property protections since the rights holder now has the ability to restrict competition and set prices without having to compete directly against another seller who does not have sunk costs in development but have instead just copied the good that the creator is offering.18 Even in cases where other individuals can still compete by offering products sufficiently different from the creator's offering, intellectual property rights necessitate that the follow-on inventor expend money and energy creating means of bypassing the original inventor's protected intellectual property. Hence, the playing field is not tilted as far in favor of a copycat producer as would be the case without intellectual property protection, and the economic interests of the original inventor are thereby protected.
The benefit that accrues to the public from intellectual property protection comes not merely as the result of increased investment in invention and creation but also because of the public database of knowledge and ideas that is created as a result of such systems.19 Patent laws in particular require that a creator disclose his or her creation in order to obtain the protection of intellectual property laws.20 This disclosure, in turn, “reduces the likelihood of duplication of effort by others and provides a basis for further advances in the technology involved.”21
B. The Foundations of Human Rights
Most Americans are familiar with that famous line penned over two centuries ago which states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”22 This sweeping declaration sets forth both the nature of the basic human rights—namely life, liberty, and the pursuit of happiness—and the source of those rights—a Creator. Such a view is consistent, at least philosophically, with the ideology espoused by Locke in his justification of property rights, namely that a person belongs to himself or herself and is thus entitled to the fruits of his or her own labors.23
When the framers of the United States Constitution eventually embodied these broad principles in a Bill of Rights meant to secure these rights against a new federal government, the rights they recognized fell into three broad categories: 1) rights relating to the freedom of the mind,24 2) rights relating to the freedom of the physical person,25 and 3) rights relating to the protection of property.26 Intellectual property, though, was placed within the express purview of Congress in another section with a separate listed justification.27
III. Current Developments
In recent years, so-called human rights advocates have turned their attention to intellectual property laws.28 In particular, their interest has been aroused in the realm of health and medical patents.29 The issue came to a head during the 2001 World Trade Organization ministerial conference debates and resulted in the Doha Declaration being adopted in November of that year.30 That agreement reaffirmed countries' flexibilities under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) to circumvent medical patents on essential medicines in certain cases so that these medications can be more cheaply produced and thus be made more widely available.31 This action was largely seen as a response to the growing HIV/AIDS crisis in poor, developing nations that typically lack the means of being able to afford the drugs that are necessary to combat the virus.32 The typical moral justification given for this approach is that the right to property—in particular the right to intellectual property—as recognized by the Universal Declaration of Human Rights33 must give way to the human right to health, of which access to medicine is an essential component.34
However, this conflict between intellectual property rights and a perceived human right to health is not strictly limited to cases involving HIV/AIDS drugs. To the contrary, arguments have also been made in regard to other potentially life-saving drugs, even extending so far as to include pharmaceuticals that protect women against human papillomavirus since that virus increases a woman's risk of cervical cancer.35 Hence, the trade-off is framed as a conflict between a right to life and an intellectual property rights holder's right to property.
IV. Analysis
The most important step that must be taken in resolving the tensions between intellectual property rights and human rights is to move beyond the typical linguistics used in which either type of benefit is viewed as a right in the sense that either would be inherently deserving of protection on some natural, God-given basis. Intellectual property is distinct from tangible property rights in that one's use of intellectual property—thoughts, ideas, and methods—does not inherently prevent another from using that same thought, idea, or method. For instance, suppose that one person invents a new form of human transportation. If another person were to also start building an exact copy of that form of human transportation, the first individual is not thereby deprived of his or her ability to build that product simply by not having enforceable patent rights; to the contrary, both individuals may successfully build the device. The original inventor is merely denied the ability to force anyone else who wishes to have that product to purchase it from him or her. In other words, he or she just does not obtain the economic benefits that accrue to a monopoly in a market. That person is still free to think as he wishes and to create what he or she wishes out of the physical property within the outer perimeter of his or her control.
Intellectual property, therefore, stands in sharp contrast to physical property, which necessarily occupies a fixed location. For instance, if one person wishes to have a couch in his or her living room, another individual cannot have that same couch in a different dwelling. Physical property laws, regardless of their philosophical underpinnings, serve the ultimate function of preventing disputes that would otherwise emanate from the finite, tangible nature of resources—a problem not present within the realm of intellectual property.
Intellectual property rights actually are antithetical to the most basic of human rights, the freedom of mind and thought. As Nobel Prize-winning economist Dr. Milton Friedman correctly observed, “[f]reedom of speech is the opposite of copyright. . . .”36 Similar reasoning holds true of patents, for one person may be deprived of the use of an idea if he or she had been beaten in a race to the patent office.
Instead, the basic justification for intellectual property rights is not to secure some God-given freedom but instead to serve an economic function.37 Intellectual property rights merely are legal tools of achieving a policy goal, namely encouraging investment in products of the mind and the development of new ideas.38 Recognizing patent protections as a legislative vehicle that actually requires a trade-off with rights as opposed to being fundamental rights themselves negates the idea that compulsory licensing or lower intellectual property protections are somehow indefensible.
The other side of the equation must also be carefully evaluated, too. The oft-asserted countervailing interest to intellectual property rights is not freedom of mind, thought, speech, person, or property, but that of human health. In short, those promoting a right to human health are actually advocating the proposition that people have an affirmative responsibility to take care of others and to provide for certain needs for those individuals.
The concept of rights, however, does not and should not include such affirmative obligations as to provide for the sustenance of one's fellow man. True liberty and rights are the freedoms to do as one wishes with his or her own body and legally-acquired property. To make demands of one's fellow man actually serves to tread on the rights of that other person. Rights are, in essence, negative liberties. In this context, when one attempts to assert the affirmative demand for another's goods or products, he or she is actually impeding upon that person's own ability to determine his own destiny. The United States Bill of Rights is, of course, a charter of negative liberties—rights to be free from others blocking ones speech,39 religious practice,40 possession of arms,41 and intrusion into person or property42. True rights and liberties exist without action from another because they are inherent in the nature of the person, regardless of the existence or nonexistence of another. If a freedom or liberty—a right—can only be exercised with the cooperation of another person, then the asserted interest in question is not a right but a demand upon another.
Hence, the conflict that exists between intellectual property protections and so-called rights such as the right to health should not be cast in terms of inherent, inalienable, and inviolable rights. Instead, the problem that exists is simply that of one policy consideration—granting temporary monopolies to increase the economic incentive to invest in development of new products—coming up against another—ensuring the healthiest public possible within the territory of a sovereign. Once the debate is cast in that light, the argument need not be about what rights one is entitled to by the virtue of mere existence but rather what the benefits are to society as a whole.
The easy answer that comes about on the surface of the problem is that promoting human life is always a more important policy objective than economic development. Under this view, therefore, health-related intellectual property protections would routinely give way to the all-important policy objective of promoting public health. Without life and health, of course, property rights are irrelevant.
This argument is indefensible, though, because investment in pharmaceuticals and other health-related research and development would likely plummet if a person or group of people acting through a government routinely benefited from the research without having to pay a share of the sunk research costs. Pharmaceutical research and development in particular would be severely impacted since the costs spent developing a drug may rise to astronomical levels given the decades-long process that can often be involved, while reproduction of these drugs once a workable formula is known is oftentimes relatively inexpensive and the barrier to entry into a competitive market for the drug is thereby small. Competition, once widespread, tends to drive the costs of acquiring the product down towards the marginal costs of production, and thus the initial inventor has very little chance of recouping his or her initial investment. Even worse, the inventor is actually placed at a competitive disadvantage in relation to the product since he or she would naturally be in a weaker financial state than his or her competitors as a result of the initial outlays required for product development.
A sovereign, therefore, needs to make its own determination about the relative importance of these policy considerations in the context of its own particular situation free from any linguistics about rights or a sense of inviolability. The factors meriting consideration are not merely limited to just balancing economic incentives against so-called human rights but also extend to include international economic considerations and comity with fellow nations in order to realize other policy objectives that may be peculiar to the given nation-state. No presumption need necessarily be given in favor of either intellectual property protection or asserted human rights interests. The factors that a nation weighs, however, should include all possible policy considerations and not treat either intellectual property or one man's or group's demand for resources as an inalienable right. Balancing of all possible interests against the ramifications of a given course of action is thereby both completely appropriate and vital in a quest to obtain the best possible outcome.
V. Conclusion
The current debate about intellectual property rights in relation to so-called human rights is, in many cases, bogged down by a perceived sense of inviolability that comes about due to the use of the word “right” in relation to each asserted interest. True fundamental, inviolable rights, however, are not based on a question of what one can do to another or what one can prevent another from doing. Instead, inalienable rights are those which are negative liberties, those which emanate from the freedom of the individual to act in certain ways without interference by another—in other words, an ability to be left alone to his or her own faculties. Hence, neither intellectual property protections nor individual human wants or needs qualify as basic rights.
The basic issue, then, is transformed from a philosophical debate about which so-called rights are more important into one whereby a sovereign is free to weigh the individual importance of each consideration based on the totality of all circumstances facing that nation free from the gravity imposed by the concept of rights. Whether one nation chooses to preserve intellectual property protection in the hopes of spurring development and offering economic incentives for new inventions or instead opts to remove protection for a particular product or class of products in order to further another goal deemed more important is simply a value judgment that carries its own set of ramifications for each possible choice. The only truly correct answer for any case, therefore, is the one that best promotes those values deemed most important to a particular society in light of all possible circumstances and with which the people themselves are content as a whole.
1Robert P. Merges, Peter S. Menell, & Mark A. Lemley, Intellectual Property in the New Technological Age 2 (4th ed. 2006).
2Id.
3Id.
4Id.
5Id.
6Id.
7Id. at 3.
8Id. at 6.
9Id. at 6-7.
10Id.
11Id. at 7.
12Id. at 8-9.
13Id. at 7.
14Id. at 9.
15Id. at 10-11.
16Id. at 11.
17Id. at 13.
18Id. at 11-12.
19Id. at 17.
20Id.
21Id.
22The Declaration of Independence para. 2 (U.S. 1776).
23See supra text accompanying notes 3-5.
24See U.S. Const. amend. I.
25See U.S. Const. amend. II; U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII.
26See U.S. Const. amend. II; U.S. Const. amend. III; U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VII; U.S. Const. amend. VIII.
27U.S. Const. art. I, § 8, cl. 8.
28Philippe Cullet, Patents and Medicines: The Relationship between TRIPS and the Human Right to Health, 79 International Affairs 139, 139 (2003).
29Id.
30Id.
31Id. at 146-147.
32Id. at 139.
33Philippe Cullet, Human Rights and Intellectual Property Protection in the TRIPS Era, 29 Human Rights Quarterly 403, 404 (2007).
34Cullet, supra note 28, at 149.
35See generally Kevin Outterson, Foreword—Will HPV Vaccines Prevent Cervical Cancers Among Poor Women of Color?: Global Health Policy at the Intersection of Human Rights and Intellectual Property Law, 35 American Journal of Law and Medicine 247 (2009).
36Milton Friedman, Economic Freedom behind the Scenes, The Cato Institute, http://www.cato.org/special/friedman/friedman/friedman4.html (last visited Sept. 15, 2011).
37See supra text accompanying notes 15-21.
38See supra text accompanying notes 15-21.
39See U.S. Const. amend. I.
40Id.
41See U.S. Const. amend. II.
42See U.S. Const. amend. II; U.S. Const. amend. III; U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VII; U.S. Const. amend. VIII.
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