HUMAN RIGHTS AND INTELLECTUAL PROPERTY: CONFLICT OR COEXISTENCE?

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*Bosire Chrispin

The balance between public and private interests found under the international human rights instruments, is one familiar to intellectual property law.”

This seminar paper interrogates the nexus between human rights and intellectual property rights with the sole aim of evaluating and determining whether and to what extent they either conflict or coexist.

Human rights are fundamental as they are inherent and timeless expressions of fundamental entitlements of the human person. Persons are entitled to the human right to protection of the moral and material interests resulting from one’s scientific, literary and artistic productions. This safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living.

On the other hand, intellectual property rights are first and foremost, means by which states seek to provide incentives for inventiveness and creativity, encourage the dissemination of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific, literary and artistic productions for the benefit of society as a whole.

Intellectual property rights are generally of a temporary nature, and can be revoked, licensed or assigned to someone else. Intellectual property rights, often with the exception of moral rights, may be allocated, limited in time and scope, traded, amended and even forfeited.

Moreover, intellectual property regimes primarily protect business and corporate interests and investments. The scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1(c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.

IP rights are not fundamental human rights but instrumental legal tools to further social and economic purposes. Further, it is worth noting that even though the foregoing position is not entirely defenseless, intellectual property rights are enshrined as human rights in Article 27 of the Universal Declaration of Human Rights, and further emphasized in Article 15 of the International Covenant on Economic Social and Cultural Rights, Article 19 of the ICCPR and Vienna Declaration and Program of Action 1993.

Basis and Origin of HRs and IPRs

During the decades following World War II, the most pressing concern for the human rights community was elaborating and codifying legal norms and enhancing monitoring mechanisms. Among these categories, economic, social, and cultural rights were the least well developed and the least prescriptive, having received significant jurisprudential attention only in the last decade.

For advocates of intellectual property protection, by contrast, the central focus of international lawmaking was twofold: first, the gradual expansion of subject matters and rights through periodic revisions to the Berne, Paris and other conventions, and later, the creation of a link between intellectual property and trade.

It was the human rights community that first took notice of intellectual property law. Two events caused intellectual property to be placed on the agenda for human rights lawmaking. The first was an emphasis on the neglected rights of indigenous peoples, and the second was the consequence of linking of intellectual property and trade through the TRIPS Agreement. Both of these events exposed the serious normative deficiencies of intellectual property law from a human rights perspective.

Therefore, the clamor for human rights protection after the world war II forms the basis for evolution and active recognition of both human rights and by extension, intellectual property rights.

HRs and IPRs; The Relationship Debate

Until recently, policy makers, scholars, and activists paid little attention to the implications of the intellectual property system for the protection of human rights. Long ignored by both the human rights and intellectual property communities, the relationship between these two fields has now captured the attention of government officials, judges, activist communities, and scholars in domestic legal systems and in international venues. These venues include the World Intellectual Property Organization, the United Nations Human Rights Council, the Committee on Economic, Social and Cultural Rights, the World Trade Organization, the World Health Organization and the Food and Agriculture Organization.

Laurence Helfer argues that each legal regime, (HRs and IPRs) was preoccupied with its own distinct concerns and neither saw the other as either aiding or threatening its sphere of influence or opportunities for expansion.

In light of the foregoing therefore, states must bear in mind their human right obligations when they negotiate and implement international rules on IPR. For decades the two subjects developed in virtual isolation from each other. However, in recent times, international standard setting activities have begun to map previously uncharted intersections between intellectual property law on the one hand and human rights on the other. Patent rights have spread throughout the world by virtue of an intrinsic network of bilateral, regional and multilateral treaties like World Trade Organization, and the extensive use of such rights resulting from this spread, has had an inevitable effect on human rights.

With regard to the relationship between the two legal regimes, scholars have postulated two distinct conceptual approaches to the human rights-intellectual property interface. These are the conflict approach, coexistence approach, among others as discussed below;

Conflict Approach

This approach views human rights and intellectual property as being in fundamental conflict and as a result sees strong intellectual property protection as undermining and therefore incompatible with a broad spectrum of human rights obligations, especially in the area of economic, social and cultural rights.

The U.N. Sub-Commission on the Promotion and Protection of Human Rights has adopted the conflict approach, noting that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights.

The proponents of this approach advocate for a prescription that in order to solve this conflict, there is need for recognition of the normative primacy of human rights law over intellectual property law in areas where specific treaty provisions conflict.

Further, an interpretation of Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by the Committee on Economic, Social and Cultural Rights, made clear that not all attributes of intellectual property rights have human rights status.

For instance, with regard to access to medicine, as long as intellectual property laws confer monopoly rights; they generally inflate prices. This reprobates into a conflict situation, since essential goods for the enjoyment of human rights, such as new medicines are priced out of the reach of the poor.

Patents granted to pharmaceutical companies in rewarding their innovation efforts contribute to high prices of drugs, which consequently prevents access to life saving medicines. Millions of people continue to suffer despite the existence of technology because medication is beyond their purchasing power. Even when the state may be obliged to step in and help in alleviating the suffering, stringent trade related rules and IPR stand in the way.

The conflict approach, in a nutshell, indicates that HRs and IPRs are distinct and separate legal regimes that must be interpreted as such, hence creating sharp distinctions which lead to each regime championing its own interests oblivious of the resulting harm occasioned upon the users of these rights. This breeds ground for proponents of the conflict approach to champion for their assertion that between HRs and IPRs, one must take precedence over the other.

Coexistence Approach

This school of thought insists that both legal regimes have the potential to tolerate each other. The World Trade Organization (WTO) has embraced the coexistence approach, emphasizing the availability of built-in flexibilities in existing international trade agreements.

The proponents of this approach view human rights and intellectual property rights as concerned with the same fundamental question; defining the 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 also views both areas of the law as essentially compatible, although often disagreeing over where to strike the balance between incentives on the one hand and access on the other.

The World Trade Organization (WTO) notes the potential for the intellectual property and human rights systems to coexist and that rights under article 27.2 of the UDHR and article 15.1(c) of the ICESCR together with other human rights will be best served, taking into account their interdependent nature, by reaching an optimal balance within the IP system and by other related policy responses.

Human rights can be used and have been and are currently being used to argue in favor of balancing the system either upwards or downwards by means of adjusting the existing rights or by creating new rights.

With regard to the human right to health and the intellectual property right to patents, for instance, there is no conflict. The tension between the two could be resolved considering that human rights enjoy primacy over patents since there is no evidence to suggest that right to health and in particular access to medicines are considered prioritized norms under International Law.

The WTO views IPRs and HRs as complementary. Therefore, a balancing act must take place at the domestic level.

The “strangers” Approach

This approach is to the effect that HRs and IPRs are two bodies of law that are complete strangers, in that IPRs have no basis in HRs at all. The approach refuses to buy the argument that IPRs and HRs are allies and concludes that the two legal regimes are not part and parcel of each other.

The Integration Approach

The integration approach requires that while giving effect to HRs and IPRs, courts and tribunals adopt an approach that seeks to enforce the interests of both legal regimes. This is based on the facts that in practice, IPRs seek to grant and promote certain human rights, such as the right to human dignity, by requiring that as an incentive to innovativeness, moral rights such as the right to psychological recognition and satisfaction, through patents. For other righ9ts such as copyright and trademarks, IPRs seek to reward creativity, thus promoting the human right to self-development.

Criticisms on the Approaches

While the conflict approach identifies a predominant conflict between IPRs and HRs, it fails appreciate that the two regimes can be reconciled to achieve the interests fronted by each. Therefore, this approach may not work for Kenya, since increasingly, IPRs have been identified by scholars as part and parcel of human rights, hence recognition that the two competing rights ought to be interpreted in unity.

Further, the foregoing position holds true since for instance, patent rights are incentives to innovation. Therefore, the conflict approach fails to appreciate the import of patent rights and its impact on innovation, which in turn foster promotion of human rights.

The coexistence approach on the other hand fails to appreciate the history of both HRs and IPRs and the fact that the two legal regimes evolved separately over time, to the extent that IPRs are recognized as belonging to a different legal regime, aside from the HRs regime.

Therefore, the integration approach, which calls for harmonization and interpretation of HRs and IPRs as part and parcel of each other and as complementary, rather than competing rights remains the most effective approach towards conceptualization of both HRs and IPRs.

Balancing IPRs and HRs

There is need to strike a balance between HRs and IPRs to avoid pitting them against each other. Possible ways of resolving the tension between HRs and IPRs, include; treaty interpretation, lex superior derogat legi inferior (superior norms prevail over an inferior) and conflict resolution technique to establish which of the two norms has superior status under international law.

Some intellectual property rights, like those that protect the personality of the creator can be conceptualized as human rights themselves and so the conflict between them and other human rights is to be evaluated under a “relative priority” or “balancing” approach.

IPRs and HRs are allies and sometimes enemies to the extent of conflicts, but certainly not strangers because the two regimes are recognized as part and parcel of each other. Therefore, the balancing act may be conceptualized as follows;

First, the just remuneration approach is ideal for situations involving an inevitable conflict between HRs and IPRs, for example, between the right to the protection of interests in intellectual creations and the right to freedom of expression. Under this approach, authors and inventors hold a right to remuneration, rather than exclusive control, while individuals obtain a human rights-based compulsory license, as compared to a free license.

Secondly, the core minimum approach, provides guidance on the minimum essential levels of protection a state has to offer to comply with its human rights obligations. That approach seeks to balance the state’s obligations against the inevitable constraints created by a scarcity of natural and economic resources. With regard to protection of IPRs, states are required to incorporate laws to ensure that they are protected and enforced.

Finally, the progressive realization approach offers insight into the noncompeting relationship amongst the different rights protected in international or regional human rights treaties. This approach is important, because human rights are not only universal entitlements, but also empowerment rights-rights that enable individuals to benefit from other equally important rights. Therefore, where there is an apparent conflict between what is perceived as a human right and an intellectual property right, this approach can be employed to enable the realization of the rights on priority basis and progressively.

Furthermore, an interpretive approach that treats the right to health not as an exception to trade and IP but as a higher norm can be employed when reconciling the two legal regimes. Courts in developing countries can play an important role in improving access to medicines in their countries if they incorporate a right to health when adjudicating patent cases involving pharmaceutical products. Patent rights should not be allowed to trump over the right to health since they have a direct impact on the right to health where pharmaceutical products are priced beyond the reach of poor patients.

From the above, a balance between HRs and IPRs is essential since the purpose of the law is to guarantee rights, in spite of the various clusters in terms of regime.

Conclusion

This paper makes a stern conclusion that HRs and IPRs need to be enforced harmoniously, without losing the import of either cluster. Further, it is important to separate the conflicts between human rights and intellectual property rights into two sets of conflicts: external and internal conflicts. While external conflicts lie at the intersection of the human rights and intellectual property regimes, internal conflicts exist only within the human rights regime. With respect to external conflicts, it is important to separate the human rights aspects of intellectual property protection from others that have no human rights basis.

Once the human rights attributes have been identified, one can use the principle of human rights primacy to resolve the conflicts. While the principle may be useful in many cases, it does not resolve all conflicts, especially those in areas in which the concerned human right is only vaguely defined or its outer contours insufficiently developed.

A ‘human rights’ approach to IPRs such as patents can be utilized to obtain an inherent balance between the moral and economic rights of inventors and the wider interests and needs of society. Therefore, while identifying IPRs and HRs as complementary rights, there is need to take into consideration the evolution of IPRs to avoid downplaying their significance when adopting the primacy of human rights doctrine. Therefore, it is this seminar paper’s standpoint that HRs and IPRs are not in conflict and therefore an approach that pits them against each other should not be adopted.