Abstract
There are different approaches regarding the intersection between IP and human rights. Some consider them as conflicting, being IP a threat to several human rights obligations. Others consider IP and human rights as essentially compatible, trying to find the same equilibrium, even if sometimes disagreeing on the balance between incentives for innovation and creation on the one hand and access to the results of such efforts on the other. The paper analyzes how the two aspects should and could be reconciled.
I. Introdutcion
There are different approaches regarding the intersection between IP and human rights. Some consider them as conflicting, being IP a threat to several human rights obligations. Others consider IP and human rights as essentially compatible, trying to find the same equilibrium, even if sometimes disagreeing on the balance between incentives for innovation and creation on the one hand and access to the results of such efforts on the other. The truth stands always in the middle. It is true that historically these two fields have been treated in an isolated way, but this does not mean that they may not be connected in relation to some aspects, also taking into account the evolution of law over changing times (let us just think about indigenous peoples’ rights which were not seriously recognized until the 1990s, and their traditional knowledge, whose protection could potentially fall within the IP system which however was not drafted for these specific needs). Indeed, the threats that IP may put to the sphere of human rights and to their potential evolution were not so immediate.
II. The relationship between IP and Human rights
Going back to the Universal Declaration on Human Rights of 1948, an important provision set the existing interaction between the two fields[1]: “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he/she is the author, as well as the right to enjoy benefits of scientific progress and its application”[2]. The provision, however, protects only the object, following John Locke’s labor theory, according to which the fruits of one’s labor belong to her/him because she/he worked for them. This gives the laborer a natural property right of the natural resource itself, since its ownership was necessary for the production. The possibility of considering IP as a human right could find support in its embodiment even in some constitutional instruments, thus elevating it as a constitutional right[3]. The protection of the property right is addressed also in regional human rights instruments[4]. However, it is undeniable that there are differences between the two systems: IP is based on economic growth principles and has a limited time of protection, whereas human rights are universal, inalienable, indivisible and belong to the human being as such[5]. Further, IP rights may be revoked, licensed or granted to someone else. One thing is saying that a person has the right to benefit from “the protection of the moral and material interests resulting from one’s literally, artistic, scientific production”; another thing is saying that IP rights are equal to the right to life, a comparison which would result as true if we assume IP rights are human rights, and which however seems an unbalanced relation. I would argue that IP rights are not fundamental rights but legal tools to foster social and economic purposes. Human rights could be invoked to limit the impact that IP may have in different fields, such as access to medicine. In this context, the human right to health may be at risk if new and more efficient drugs are protected by IP and are sold to exorbitant prices, not affordable for everybody. Indeed, considering the clash with human rights, the World Health Organization has started discussing the whole financing of pharmaceutical research, wondering about the predominance of private, profit-driven companies, which could undermine access to essential drugs.
III. The TRIPs agreement and human rights: the need for a reference and the implicit instruments for the protection of human rights
Neither the TRIPs Agreement nor any other IP-related treaty (Paris and Berne Conventions) refer to human rights. However, there should be the need for such reference: since enhanced protection of IP rights may help advance the realization of human rights, a reference to the latter should be made in the Preamble, so to clearly recognize the positive role IP rights may have in the context, but also in articles pertaining limitations and exceptions to IP rights, including at least those rights whose potential influence by IP may be more immediate (e.g. right to health, indigenous peoples’ right and associated traditional knowledge…).
TRIPs Agreement could, even if indirectly, help the promotion of human rights in at least two ways: interpretation and implementation. The first way is, broadly speaking, the reading of the provisions through the lens of human rights. The Vienna Convention on the Law of Treaties 1969 states at its article 31 that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and in the light of its object and purpose, using also the preamble”. Accordingly, we should read recital 5[6] of the TRIPs as including developmental purposes which, read taking into consideration the principle of sustainable development which is made up also of a social pillar, may include also social (thus human) rights, such as the right to food or to health. A similar reasoning can be applied to article 7 of TRIPs Agreement, which, addressing the objectives of the convention, states that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”. Finally, article 30 states that “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties”. We could interpret the legitimate interest as those protected by law, thus including human rights: this reading may be coherent with the view that IP must cohabit with human rights. Another contribution of and for human rights in IP law is the guidance which can be provided to interpretation by Courts. In the case Hoffman-La Roche Ltd. v. Cipla Ltd. (India), the Court rejected the injunction requested by the plaintiff against Cipla, a major generic manufacturer, to prevent an alleged infringement of a patent sold by Hoffman-La Roche at a price three times higher than Cipla’s product. The injunction was rejected based on the right of people to have access to life-saving drugs which would have been no longer available would have the provisional measure be granted. In this case, human rights were used not only to interpret IP law, but also to limit IP rights. A similar limit can be understood through the wording of articles 7 (supra) and 8[7] of TRIPs, as they define relevant public policy goals (protect public health and nutrition; socio-economic and technological development) which must be prevented by over-extensive protection of IP rights. And this provision does not apply only to developing countries, so also developed governments can adapt their IP national law taking into consideration, for example, the need to preserve culture diversity. Further, IP law cannot be read in isolation from the other branches of public international law, as the Appellate Body suggested in the case US-Gasoline of 1996, at paragraph 16[8]. Since this principle has been endorsed in several subsequent decisions interpreting the provisions of the WTO Agreement, it could extend to TRIPs too. Since the interaction between the two is evident, human rights can guide the practical implementation of IP, especially if we consider the core ratio of IP (recognize the effort of the owner and remunerate the benefits for the society) as included in the human rights sphere. Thus, the second contribution by and for human rights is that of providing guidance for the drafting and/or interpretation of exceptions to IPRs in the domestic legislation. The TRIPs Agreement admits limitation and exceptions to IP rights for purposes of fair use, ordre public and morality (e.g. articles 13, 17, 27.2, 30). Article 27.2 is the most human-rights-oriented limitation, with also a reference to environment: “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law”. These limitations and exceptions, as well as their drafting, should be interpreted bearing in mind human rights, e.g. refusing the registration of a patent in case it could hinder the public access to basic medicines.
IV. Should there be a balance between IP and human rights or does the latter primarily apply?
A partial response to this question has been provided by the discourse above. A balance between IP and human rights is possible and should exist. Interpreting and implementing IP bearing in mind human rights, together with their possible inclusion in IP-related conventions, make sure that coordination is reached. IP rights serve to boost innovation and creation, which, without an economic remuneration, would not happen. Surely, when a conflict arises, human rights should prevail, but the legitimate interests of the owner or inventor should be preserved. A possible solution worth further analysis could be a sort of compensation similar to the mechanism of compensation against expropriation adopted in international investment law.
V. Conclusions
The underlying rationale of article 27(2) of the Universal Declaration provides little support for the view that IP rights are fundamental human rights, even if national and international IP law may certainly be used for fostering human rights. Interpretation and implementation are the two key areas IP could go through to indirectly protect human rights. It is undeniable that there may be a conflict among them: one (IP) answers to the logic of the economy, the others (human rights) are essentially socially oriented. This does not mean that they cannot be reconciled: indeed, the challenge of adjusting economic, social and environmental aspects is part of one emerging principle, that of sustainable development.
NOTES
[1] The same provision was embodied in article 15 of the UN Covenant on Economic, Social and Cultural Rights of 1966.
[2] Universal Declaration on Human Rights (UDHR), GA Res. 217A, GAOR, third regular session, UN Doc. A/80, 12th December 1948, article 27.
[3] See article 1, Section 8, clause 8 of US Constitution: The Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”; art. 17 EU Charter of Fundamental Rights (Right to Property): “1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected”.
[4] See article 21 of the American Convention on Human Rights, 1969 and article 14 of the African Charter on Human Rights and Peoples Rights, 1981.
[5] Characterization by UN Human Rights Office of the High Commissioner, www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.
[6] “Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives”, see TRIPs Agreement recital 5.
[7] “Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement”.
[8] US – Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2AB/R, Appellate Body, 1996.
