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Are intellectual property rights fundamental human rights?

By Prabhash Ranjan

What are the implications of construing IPR as fundamental human rights?

A lot has recently been written on the link between Intellectual Property Rights (IPR) and human rights. One of the more intriguing questions is whether IPR are themselves human rights. In order to answer this, it would be pertinent to look at the relevant international human rights instruments, namely the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 27 (2) of the UDHR states that everyone has the right to protection of moral and material interests resulting from any scientific, literary or artistic work of which he is the author. Similarly, Article 15.1 (c) of the ICESCR recognises the right of everyone to benefit from the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. These provisions have been used by many to argue that fundamental human rights covenants recognise IPR as being a human right.

This interpretation raises a couple of issues. Firstly, does it imply that all IPR are human rights? Secondly, what are the implications of construing IPR as human rights?

Are all IPR human rights?

Before analysing the human rights covenants mentioned above it would be pertinent to look at some of the theoretical arguments against treating IPR as human rights.

Robert Ostergard argues that traditional theories like John Locke's labour theory of property (objects produced by an individual through the mixing of labour with resources are the property of the individual) and inferences drawn from the utilitarian theory (IPR provide incentives to produce new intellectual objects, and society benefits from these in the long run) fail to offer a rational and adequate theoretical justification for IPR. He further argues that without a logical foundation justifying IPR, consideration of IPR as human rights is indefensible. Instead, Ostergard says, for a country it is the physical wellbeing of people that should trump protection of IPR; only those IPR that contribute to the physical wellbeing of the people should be protected.

In other words there should be a hierarchy of IPR; all IPR cannot be treated the same.

What remains unclear in this argument, however, is whether IPR that significantly contribute to the physical wellbeing of people are worthy of being protected as human rights.

If the answer to this question is yes, then there are two points worth mentioning. First, the argument implies that at least some IPR are human rights. Second, which IPR pass the test of contributing to the physical wellbeing of society?

Classifying IPR as human rights is problematic at the theoretical level because human rights are understood as rights that are inalienable and part of universal entitlements that are not limited by time and cannot be suspended or curtailed. IPR, on the other hand, are limited-duration statutory rights given by the State. They can be curtailed in certain circumstances where they conflict with the larger interests of society. For example, a patent held by a pharmaceutical manufacturer over a medicine can be suspended if the granting of the patent causes the price of the drug to escalate, putting it out of the reach of a large section of society. This highlights a fundamental difference in the very concept of human rights and IPR, making it difficult to treat intellectual property rights on a par with fundamental human rights, such as the right to life.

Returning to the interpretation of the human rights covenant, IPR advocates often argue that human rights covenants show that all IPR are human rights. This argument implies that any IPR, be it patents, copyright, trademarks, industrial designs or plant breeders' rights, are human rights.

Close scrutiny of the two human rights provisions mentioned above suggests that this is not the case. Both Article 27 (2) of the UDHR and Article 15.1 (c) emphasise the moral and material benefits to be derived by the 'author'. The key to understanding these provisions is in the meaning of the word 'author'.

Before we interpret the word, it's worth mentioning the Vienna Convention on the Law of Treaties (VCLT). The VCLT puts down the rules by which international treaties may be interpreted; human rights covenants must be interpreted in accordance with the VCLT.

Article 31 (1) of the VCLT states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context, and in light of the treaty's overall objective and purpose. Article 32 of the VCLT, however, provides that a treaty interpreter may have recourse to supplementary means of interpretation including preparatory work of the treaty. Recourse to preparatory work may be made in order to confirm the interpretation developed by applying Article 31, or to ascertain the real meaning of the provision if application of Article 31 gives an ambiguous or obscure meaning or leads to a result that is manifestly absurd or unreasonable.

Returning to interpretation of the word 'author' in the two provisions mentioned above, the argument that all IPR are covered under these two provisions implies that 'author' includes not just the writer (which is the ordinary meaning of the word) but also the inventor or breeder. This interpretation is too broad and does not satisfy the basic cannons of treaty interpretation given in Article 31 and 32 of the VCLT. As pointed out earlier, the provisions talk of protecting the moral and material benefits arising from the work of an author. Reference to the word 'author' implies a reference to copyright. Protecting the moral and material benefits of authors can certainly not mean protecting the benefits of a patent inventor or plant breeder because the ordinary meaning of the word 'author' does not include an inventor or breeder. Further, the words 'moral and material benefits' do not refer to the kind of monopoly benefits that an IPR holder enjoys in an IP framework.

Moreover, the ordinary meaning of the terms of the treaty needs to be understood in the context of its objective and purpose. In this regard, the overall context of Article 15 (1) of the ICESCR assumes importance. Article 15 (1) talks not just of the material benefits for the author but also recognises the right of everyone to take part in cultural life and to enjoy the benefits of scientific progress and its applications. Therefore, Article 15 (1) is concerned with striking a balance between the rights of the author, who makes a specific contribution, with the individual and collective rights of society to benefit from this contribution. The context is also spelt out in Article 2 that states that countries will take steps towards the progressive realisation of the rights given in the covenant. This implies realisation of all rights in a harmonious manner.

Article 32 of the VCLT can also be used to determine the meaning of the word 'author' in case there is ambiguity in either its meaning or its interpretation, leading to an absurd result. Recourse to preparatory work and the drafting history of Article 15 shows that Article 15.1 (c) was added to Article 15 to protect the piracy of the literary and scientific work of authors. This clearly shows that the purpose behind Article 15.1 (c) in the ICESCR is to protect the copyright of authors; the intention was not to include patent inventors or plant breeders as authors.

General comment No 17

In this regard, it is important to look at general comment No 17 of the ICESCR committee, on the position of IPR in the covenant. The significance of general comments stems from the fact that they act as important authoritative interpretations of provisions of the covenant. This general comment states that the right of everyone to benefit from moral and material interests resulting from any scientific, literary or artistic production of which he/she is the author is a human right. According to the committee, this human right is derived from the inherent dignity and worth of all individuals.

However, the committee distinguishes between the right of the author to benefit from moral and material interests and rights recognised under the IP regime. There is a distinction between beneficiaries of protection from a human right to moral and material benefits resulting fromany scientific, literary or artistic production enjoyed by an author, and from the beneficiaries of an IPR regime. Benefits from the former allow the author an adequate standard of living and safeguards the relationship between the author and his creation and the people, community and other groups that benefit from the creation. Benefits from the latter, on the other hand, are enjoyed by corporates and businesses. The committee also states that the right to benefit from the protection of moral and material interests resulting from the scientific, literary or artistic production encourages the active contribution of the creator to society. This argument is similar to the incentive argument made to justify the granting of IPR, and perhaps blurs the distinction that the committee is endeavouring to draw.

The committee's position is slightly confusing. On one hand it distinguishes between the rights given in Article 15.1 (c) and an IP right; on the other hand, it does not elaborate on how these rights are different except for stating that the right under Article 15.1 (c) is not a monopoly right recognised under the IP system, and that it is linked to the author being able to earn an adequate livelihood. The difficulty here is defining 'adequate livelihood'.

Let's take an example to better understand this point. Suppose a country issues a compulsory licence (CL) (issuing a CL means revoking the right of the patent holder and giving the right to a third party, without authorisation of the patent holder) for a pharmaceutical product patent. Can the patent holder argue that this is a violation of his human rights under Article 15.1 (c)? If the assumption is that this is a monopoly right and hence does not fall under Article 15.1 (c), the patent holder could argue that it is a 'material benefit' necessary to earn him an adequate livelihood. How would one resolve such an argument? The committee does not elaborate on the necessary legal tests to make the distinction. In other words, interpretation of the committee's statement implies that a patentee, so long as the benefits derived are only for an 'adequate livelihood', will not infringe Article 15.1 (c). However, if the patentee gets a monopoly right of the type that exists in the IP framework, then the right would not fall under Article 15.1 (c). From this interpretation it remains unclear where material benefits end and where monopoly rights begin.

The other problem with the committee's statement is interpretation of the word 'author'. The committee gives it a wide interpretation by calling authors 'creators', not just 'writers' which is its ordinary meaning as supported by VCLT rules. 'Creator' is a broad category. Although the committee does not explicitly say whether a patent inventor or a plant breeder is a creator, and hence an author, it does tend to support their inclusion under the broad category of 'creator'.

An important clarification provided by the committee is that the word 'author' means natural persons; legal entities like businesses or corporations are not included. The positive effect of this is in the area of medical patents. Since most medical patents are held by companies, the monopoly right of these companies is not protected as a human right under Article 15.1 (c).

At the broader level, the problem with the general comment, as argued by Philippe Cullet, is the emphasis it places on Article 15.1 (c) without interpreting clauses (a) and (b) of the same Article, which are much broader in scope. As pointed out earlier, Article 15.1 is about striking a balance between the benefits that the author enjoys and the benefits that ensue from the author's contribution to society at large. In short, although the committee has tried to separate the rights of authors, under Article 15.1 (c), from the rights that exist in the pure IP framework, the interpretations developed by the committee seem to have their basis in the IP framework.

Implications of construing IPR as human rights

Construing IPR as human rights implies construing the right to enjoy monopoly right and rent as a human right even if it is at the expense of society at large. This goes against the very basis of Article 15.1 that talks of striking a balance. Moreover, there is the dominant view that IPR and human rights are incompatible, ie, that there is a conflict between IPR and human rights as the former comes in the way of countries enforcing the latter.

This view has become dominant after the adoption of the WTO's Trade-Related Aspects of Intellectual Property (TRIPS) agreement. Advocates of this view argue that the obligations imposed by the TRIPS agreement, especially in the form of medical patents, come in the way of countries fulfilling their international obligations towards fulfilling their citizens' right to health, which is a well-recognised human right. Article 25 of the UDHR states that 'everyone has the right to a standard of living adequate for the health and wellbeing of himself... including food, clothing, housing and medical care...'. Similarly, Article 12 of the ICESCR advocates the '...right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Article 12.2 (d) of the ICESCR places an obligation on states to create conditions that ensure medical service and medical attention in the event of sickness. If IPR such as medical patents are recognised as human rights, it would result in absurd outcomes where one human right comes in the way of another human right. Specifically, medical patents obligate a country to introduce product patents in pharmaceuticals, thereby disallowing the generic manufacture of medicines, which, in turn, leads to higher medicine prices, adversely affecting accessibility of medicines by the poor and endangering the human right to health.

This discussion illustrates that IPR are not human rights, essentially because there are certain fundamental differences between the two. Article 15.1 (c) should be narrowly construed in light of the overall balancing principle enunciated in Article 15.1. If we consider IPR as human rights, there could be serious repercussions on the fulfilment and enjoyment of existing human rights.

(Prabhash Ranjan lectures at the National University of Juridical Sciences (NUJS), Kolkata, India. The views expressed in this article are his own)

InfoChange News & Features, December 2007