Introduction
The two areas of Intellectual property rights and Human rights were not at all related to each other. Growing in isolation with each other, neither of them infringed on each other’s domain or in another sense it was believed that neither of them would be in a position to be in conflict with each other, especially in the economic, cultural and social rights. Over the period of time, two views have originated with regard to the relationship between the two fields. One of them is that both of them can exist together or even the IPR can qualify to be a human right and the other view is that both the subjects being in fundamental conflict with each other. On the one hand, is the rights offered to the holders of Intellectual property and on the other hand, are the rights accrued to every human being. On the one hand, is the protection given to Intellectual property holders and on the other lies the use of that property for the development and welfare of human society.
Human rights are the rights granted to every person mere by the fact of their existence. Intellectual property is the rights provided to individuals or groups of individuals over the intellectual property i.e. creation of the human mind. This is an intangible right over a tangible work and gives the owner the right to prevent others from using their works.
The development of Intellectual Property has divided the countries into factions which value these rights according to their own status and position with respect to other countries. The developed countries like the USA value the private rights of individuals highly and thereby set high standards for the protection of intellectual property to gain maximum tariffs resulting from the registration of these intellectual properties. On the other hand, developing or underdeveloped countries have a tendency to work for the greater good and public welfare and thereby undermines the private rights of individuals when subject to public welfare.
If the nature of Intellectual Property Rights is construed with reference to Human Rights then it can be said that
- Intellectual Property Rights are non-fundamental Human Rights,
- These rights are open to State interference to fulfil Human Rights obligations.
It means that the IPR being non-fundamental rights, are subject to economic and welfare concerns and is not a subject of strict scrutiny standards.
Historical Development
Human rights have evolved through the years dating back to ‘Cyrus Cylinder’ in 539 BC, thereafter the ‘Magna Carta’ of 1215 which made the king subject to the law and then the petition of rights in 1628 and has thereafter subject to development with the changing needs of the society and has been impacting almost every field of law since then.
The origin of IP law can be traced back to the Venetian Law of 1474 by which the attempt to protect inventions in the form of patents was made for the first time. It was followed by the Paris Convention for the Protection of Industrial Property in 1883 that afforded protection to patents, designs, utility models, trademarks and the Berne Convention for the Protection of Literary and Artistic Works in 1886 which provided protection in the form of copyright only.
After independence, India adopted the Stockholm protocol in 1967 whose aim was to provide “developing countries greater access to copyright materials”. This was the period when the price of medicines was much higher because indigenous medicines were not available to people in general and they had to depend upon the import of medicines from foreign countries.
Evolution: A Comparative study
Human rights and intellectual property rights, both have evolved independently without caring for each other. The first foundational document regarding Human rights, the Universal Declaration of Human Rights, 1948 protects author’s “moral and material interests” in their “scientific, literary or artistic productions” as part of its catalogue of fundamental liberties.[1] The ICCPR, 1966 also provides for the benefit to the person that results from any scientific, artistic or literary works that he has created on his own and also the moral and economic benefits arising from it.[2]
When the development of IPR started, it was merely of territorial nature meaning thereby that the intellectual property laws of one country could not be applied to the other. These laws were only applicable in the territory of the sovereign. When the phase of international cooperation came, the development of these laws took place by the way of bilateral agreement indicating that the territorial nature of the IPR got defeated in this period.
The intellectual property had taken a backseat while human rights continued to evolve along with other laws. But no reference was made to Human Rights when IPR were discussed. The first documents which brought in the existence of Intellectual property rights and codified them like the Berne conventions or Paris Convention have made no reference to any human rights. The main reason that these two fields were unaware of each other was that it was never thought that they will work as aid or threat to each other.
Intellectual property rights as Human rights:
The Intellectual Property Rights and Human Rights are two separate fields of law but at the same time, they co-exist and also overlap in many ways. In the words of Lawrence Helfer, “where intellectual property laws help to achieve human rights outcomes; governments should embrace it. Where it hinders those outcomes, its rules should be modified but the focus remains on the minimum level of human well-being that states must provide, using either appropriate intellectual property rules or other means.”[3]
Universal Declaration of Human Rights and IPR
The Universal Declaration of Human Rights (UDHR) declares Intellectual Property Rights at the international level. Article 27 of the UDHR clearly provides for the right of free participation in the cultural life of the community to which he is a part and also to share the scientific advancements and advantages regarding it. The second part of Article 27 provides for the protection of moral and material interests that are the result of any scientific, literary or artistic work to its creator.” Article 15 of the International Covenant on Economic, Social and Cultural Rights further supports Article 27 (UDHR) by stating that the state parties to the present Covenant recognize the right of everyone:
- To take part in cultural life;
- To enjoy the benefits of scientific progress and its applications;
- 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.
Clause 2 states the steps that should be taken to present Covenant and achieve the total realization of their rights including those rights necessary for conservation, development and diffusion of culture and science. Clause 3 states that the state parties to the present Covenant undertake to respect the freedoms that are necessary for scientific research and creative activity. Clause 4 of Article 15 states that the state parties to the convention recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields. These points illustrate the complex and overlapping relationship between the two rights and how they co-exist in the most intrinsic way possible. The rights vested under Article 27 includes all those rights related to science and culture with the righteousness of common humanity. It goes beyond just the right of getting benefitted by right and talks about the right to share the scientific advancement and the advantages created by it. These regulations provide how progress can take place from scientific progress and its application respectively.
UN Declaration regarding rights of Indigenous people and IPR
The Human Rights advocates in the early 1990s made an observation regarding the undervalued rights of the indigenous people and their knowledge which includes their expression, ways, culture and techniques. This became a major concern regarding the rights of the indigenous people and to protect their rights, land and resources two agencies, namely the World Intellectual Property Organization (WIPO) and the United Nations Economic Scientific and Cultural Organization (UNESCO) came forward. The convention for the protection of Intangible Cultural Heritage was created along with the UN Declaration regarding the rights of Indigenous people. Intangible Cultural Heritage here means all those norms, values and expressions passed on from generation to generation. These include intangible (like prayers, songs, dance etc.) and tangible objects (like the idols for worship). These two classifications are connected to each other in such a way that separation would result in absurdity. It will be very safe to say that the values and culture of the indigenous people lie more in their practice and how they look at it or connect with it.
The United Nations Declaration on the Rights of Indigenous People states policies regarding the Right to Cultural Identity by multiple articles like Right to self-determination (Article 3), Right to maintain and strengthen their distinct political, legal, economic social and cultural institutions (Article 5), the right not to be subjected to forced assimilation or destruction of their culture [Article 8 (1)], the right to practice and revitalize their cultural traditions and customs including the right to maintain, protect and develop the past, present and future manifestations of their culture [Article 11(1)]. Moreover, the Declaration mentions the obligation to provide redress with respect to indigenous “cultural, intellectual, religious and spiritual property” taken without free, prior and informed consent [Article 11 (2)]. This provision must be read in conjunction with Articles 31 and 33. These rights mentioned above states the right to protect, control and develop the cultural endowment and traditional knowledge and their intellectual property. Thus, the convention provides rights for the development and determination of identity or their customs according to their beliefs and practices without the intervention of the state. It is also recognized by the International Law Association that the “States are supposed to acknowledge, admire and safeguard the identity of indigenous people in every sphere including their cultural heritage so that it can be preserved and passed to the future generations. Thus, it can be concluded that cultural expressions in what-so-ever form, comes under the ambit of intellectual property and this can be pointed under Article 27 of the UDHR connecting Intellectual Property to Human Rights and also uniting the Right to Intellectual Property with the Right to Cultural Identity.
IPR as conflict:
The second notion arose as soon as the two fields were interrelated and this was mainly due to the factor of globalisation that certain overlapping was found between them. It was the human rights Committee that first took notice of the development of IPR in reference to human rights and the two reasons that emerged as a conflict between the two were:
- The emphasis on the neglected rights of the indigenous people.
- The overlapping of the human rights and the TRIPS Agreement.
Both these reasons indicated that the IP laws did not give any regard to human rights and proved to be deficient with the Human rights perspective. The intellectual property rights, by broadening its scope of protection, imposed limitations on the accessibility and realisation of Human Rights.
We live in a world in which the creation, diffusion and manipulation of information have come to define an ever-increasing array of economic, political and cultural activities. The attendant expansion of the intellectual property system to new, previously unaffected territories has become a paramount concern on theoretical and empirical levels alike. In particular, the intellectual property system has significant consequences that affect the enjoyment of various human rights.[4]
Rights of Indigenous communities and Intellectual Property Rights
The UN in the 1990s started to look closely at the rights related to the indigenous communities especially the right to recognition of and control over their culture, including traditional knowledge relating to biodiversity, medicines, and agriculture.[5] But under the IPR, this traditional knowledge was not treated as a personal right because it was considered to be in the public domain. The reasons being that either they did not meet the established criteria for any type of protection under IPR laws or the communities did not apply for the ownership of those things. Since this traditional knowledge was without any owner and believed to be in the public domain, the private players and enterprises utilized this knowledge to develop new kinds of products which they further protect under the IP laws and then restrain other people from using it. These private players refrain the indigenous communities from their righteous share from the profits incurred by them. This is where intellectual property rights come in conflict with Human rights. However, the UN commissioned to create a Draft Declaration on the Rights of Indigenous Peoples, and Principles and Guidelines for the Protection of the Heritage of Indigenous People.
The issues in Trade Related Aspects of Intellectual Property Rights
The other point of conflict occurred with the adoption of the Agreement on Trade-related aspects of Intellectual property rights which was adopted as a part of the World Trade organization in 1994. This agreement provided for minimum standards of protection for all members, including many least developed states where previous commitment to patents, copyrights, and trademarks was non-existent. The unique thing about this agreement was that it provided sanctions for its non-compliance which was unlikely in any other agreement.
The UN human rights commission gathered its attention on the TRIPS in the year 2000 and adopted a resolution on the Promotion and Protection of Human Rights on Intellectual Property Rights and Human Rights.[6] This resolution stresses actual or potential areas of conflicts that exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights. These conflicts were:
- The transfer of technology to developing countries
- The impact on the rights of plant breeders who obtain patent on genetically modified organisms due to Right of food.
- Bio-piracy i.e. when researchers obtain IP over biological resources without any official sanction and exploit them for commercial purpose.
- Control of indigenous communities’ natural resources and culture
- The impact on the right to health from restrictions and monopolies created by patented pharmaceuticals.
Right to health and patents:
According to the World Health Organization (WHO), essential drugs are drugs that “satisfy the priority health care needs of the population” and “are intended to be available within the context of functioning health systems at all times in adequate amounts … and at a price the individual and the community can afford.”[7]
Drug companies often abuse the patent monopoly and fix exorbitant prices for the patented medicines which reduces accessibility and affordability of drugs. This has resulted in high prices and consequent denial of access to medicines to the poor across the globe. Another facet of this monopoly is that in the process of making huge profits public welfare has taken the backseat. The pharmaceuticals companies only carry out research and development for those diseases which are common to the lifestyle of the rich people like impotence, baldness, obesity, etc. The least resources are allocated to the development of cures of diseases that are common among the poor.
In the process of designing patent laws in developing countries, Domestic courts have a major role to play when disputes arise as to tensions between patent rights and the right to health and resolve this by distinguishing between the instrumental nature of patent rights and the fundamental nature of the right to health.[8] In addition, General Comment No. 14 states that health care services must be economically accessible to everyone, suggesting that the prices of essential drugs should not be so expensive as to be unaffordable for poor patients.[9]This makes access to essential medicines an integral component of the right to health.[10] Furthermore, states are obliged to take steps “to control the marketing of medical equipment and medicines by third parties.”[11] It has been suggested that this implies that “states should intervene where marketing of drugs by pharmaceutical companies is detrimental to the right to health.”[12]
Right to Health in India
The recognition of the right to health as an integral part of human life and its recognition as a fundamental right under article 21 of the Indian constitution has been established in the case of Consumer education and resource centre vs Union of India.[13] From a human rights perspective, access to medicines is intrinsically linked with the principles of equality and non-discrimination, transparency, participation, and accountability. States are obliged to develop their domestic health legislations and policies that support the needs of their demographic and structural criteria. To achieve these objectives, the methods that may be used are price ceiling on life-saving drugs, Quality control, provide proper infrastructure to support domestic R & D in the field of medical sciences as well as provide better taxation policies for the foreign pharmaceuticals companies to encourage their investment. For this purpose, key issues related to access to medicines must be taken into account such as sustainable financing, dosage and efficacy of medicines; procurement practices and procedures, supply chains etc.[14] The most recent example is of the Delhi Government where it capped the maximum price of the Covid vaccine to 250 rupees.[15]
Right to health means having equal and adequate access to medicines and accessibility means affordability as well as availability. For a country like India, where 270 million people live below the poverty line and its healthcare and access quality ranking is 145 out of 195 countries; providing access is a necessary yet cumbersome task. A study reveals that only 10 per cent of the people suffering from HIV/AIDS in developing countries have access to antiretroviral therapy.[16]
India took a step to resolve the issues of expensive medicines by introducing section 3(d) of India’s Patent Act to prevent the extension of patent protection through minor product modifications unless a ‘significant enhancement of efficacy’ can be demonstrated. In the case of Novartis AG vs Union of India which challenged the constitutionality of this section and seeking to patent Imatinib Mesylate, which did not have any enhanced efficacy, their petition was rejected. The significance lies in the reasoning that in a country like India which has its one-fourth population below the poverty line, it was not at all acceptable that millions of those people are denied access to life-saving drugs because of high pricing by the pharmaceuticals company. This case shows that governments in developing countries with some political and economic dominance, such as India’s, are prepared to stand in the way of big pharmaceutical companies
Copyright and Right to Education:
Copyright means the right to produce or reproduce the work or any substantial part thereof in any material form whatsoever.[17] The right to education in India has been granted as a fundamental right through a series of decisions like JP Unnikrishnan vs State of Andhra Pradesh[18] and Mohini Jain vs State of Karnataka[19]. The critical problem of potential conflicts arises from the fact that the educational materials, in which authors may have a material interest, are critical to the realization of the right to education.
The doctrine of fair usage in India or fair dealing in the UK has been envisaged to resolve the conflict between the education of persons and the rights of a copyright holder. It provides the right of access to Copyrighted material to a limited extent with specific provisions to be used by people for research and educational purposes. However, the terms are still open to interpretation and there is not much clarity in the concepts of terms for fair usage.
The recent case of Delhi University Photocopy case or The Chancellor, Masters & amp; Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors.,[20] is an example where the balance between the fundamental rights of the citizens and protection given to the copyright holders was to be compared. This was a case where on the one hand were the principles of a country that guaranteed its citizens the right to free and compulsory education and on the other hand, the interests of the copyright holders need to be protected too. The court although not in its strict words of judgement reflected that it always keeps the fundamental rights of citizens at the top.
Sugesstions:
The resolution of these conflicts needs to be in a way that balances the needs of the society and the rights of the IPR holder. The resolution should not be such that one of the parties should enrich at the cost of the other. Following are the relevant suggestions:
- The best possible way of removing these conflicts is the harmonization of the interests of the parties. The need is to ensure that the interest of the IP holder and the public at large are harmonised for the welfare of the society. For harmonisation, it is necessary that the ambiguous provisions are to be identified at first. Specific interpretations needs to be given to those provisions which respect the areas and objectives of both the fields.
- If society recognizes copyright as private property akin to physical property, such as a car, a home, or a book, then it becomes easier to view reproduction without consent of the copyright holder as theft. Similarly, if IP rights are treated as human rights or natural entitlements, there is potential to view these rights as more expansive and to view the state’s ability to restrict these rights as relatively limited.[21]
- For protecting the rights of the indigenous communities, the state should enact legislations that prevent the usage of their traditional knowledge by private players or even if they do the communities should be given the right to enforce damages or compensation for such use.
- The other way can be by denying the patents in respect of the traditional knowledge which will bring both the private players and indigenous communities at an equal footing.
The conflict between the right to health and Patent can be resolved by the intervention of the government. It can only be done when the government shows that it is prepared to fight against the big Pharmaceuticals companies. The mechanisms that can be used are price ceiling methods, providing subsidies in drugs, reducing import duties on drugs etc.
Conclusion:
The two fields of law which had grown isolated from each other had to be interrelated with increasing globalisation. It actually seems unlikely that these two fields one of which advocates for the personal right of the public at large and the other the rights and protection of the works of individuals grew unnoticed with each other. One talks about the social rights of persons and the other, especially about the economic rights. The two notions that grew due to their interrelationships were that both of them are co-existent and can complement each other in several ways and the other notion being that they are in fundamental conflict with each other. In this contemporary era, the value of both rights is to be taken into account. The best way to resolve their conflict is by harmonization in a way by which the objectives of both the laws are upheld meaning thereby that the interest of an IP holder as well the larger interest of the society are fulfilled. However, even when this harmonization is not possible, the government should give human rights an upper hand meaning thereby that the interest of the public at large should be placed higher.
[1] Universal Declaration of Human Rights, Article 27, UN Document, 1948
[2] International Covenant on Civil and Political Rights, Article 15(1)(b) and 15(1)(c), UN Document, 1966
[3] Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U.C. DAVIS L. REV. 1018 (2007)
[4] Mirela V Hristova; Are Intellectual Property Rights Human Rights?, 93 J. PAT. & TRADEMARK OFF. SOC’Y (2012)
[5] Erica-Irene Daes, Intellectual Property and Indigenous Peoples, 95 AM. SOC’Y INT’L L. PROC. 143, 147 (2001).
[6] Promotion and Protection of Human Rights on Intellectual Property Rights and Human Rights, UN Document, Resolution 7 of 2000
[7] See World Health Organization, “Essential medicines.” Available at http://www.who.int/topics/essential_medicines/en/. (last visited on 28th February, 2021)
[8] Emmanuel Kolawole Oke, Incorporating a right to health perspective into the resolution of patent law disputes, December 2013
[9] CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4), , para. 12(b), UN Document, Convention 12 of 2000, available at https://www.refworld.org/pdfid/4538838d0.pdf ( last visited on 10th March, 2021
[10] UN Human Rights Council, Access to Medicines in the Context of the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, A/HRC/RES/23/14 (2013). Available at http://www.refworld.org/docid/51cd52304.html. ( last visited on 11th March, 2021 )
[11] Committee on Economic, Social and Cultural rights, para 35, UN document, Convention 12 of 2000 February 2006, Available at http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQfUKxXVisd7Dae%2FCu%2B13J25Nha7l9NlwYZ%2FTmK57O%2FSr7TB2hbCAidyVu5x7XcqjNXn44LZ52C%2BIkX8AGQrVyIc , ( last visited 20th February, 2021)
[12] S. P. Marks, Access to essential medicines as a component of the right to health, Clapham and Robinson (see note 9), p. 90.
[13] Consumer education and resource centre v. Union of India, AIR 1955 SC 922 (India)
[14] Office of the High Commissioner, Access to medicines- A fundamental element of Right to Health, UN Human Rightshttps://www.ohchr.org/EN/Issues/Development/Pages/AccessToMedicines.aspx ( last visited March 5, 2021)
[15] Poulomi Ghosh, Private hospital can’t charge more than Rs. 250 per dose of vaccine, Hindustan Times, Feb 27, 2021, Available at https://www.hindustantimes.com/india-news/claims-are-misleading-govt-on-message-saying-vaccine-to-be-priced-at-rs-500-101614424384176.html ( last visited April 23, 2021)
[16] Press release by UNAIDS, 17 million people with access to antiretroviral drug, May 31, 2016Available at https://www.who.int/hiv/mediacentre/news/global-aids-update-2016-news/en/ (last visited on April 23, 2021)
[17] Kartar Singh Giani v. Ladha Singh & Others AIR 1934 Lah 777 (India)
[18]JP Unnikrishnan vs State of Andhra Pradesh, 1993 AIR 2178 (India)
[19] Mohini Jain vs State of Karnataka , 1992 AIR 1858 (India)
[20]University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors (2016) 160 DRJ (SN) 678 (India)
[21] J. Janewa Osei Tutu, Humanizing Intellectual Property: Moving Beyond the Natural Rights Property Focus, 20 VAND. J. ENT. & TECH. L. 1 (2017).
