Summary

While intellectual property rights tend to be seen as primarily and economic or legal issue, it has been increasingly argued in recent years that there is also a broader 'human rights' dimension.

A human rights angle on IPRs

Conventionally, intellectual property rights (IPR) tend to be seen as primarily an economic or legal issue, embodied in the rights to 'ownership' and thus to the exclusive use of inventions and creative works. But it can also be argued that there is a broader 'human rights' dimension, illustrated by the fact that the right of authors to the 'moral and material interests' resulting from their scientific, literary and artistic productions is recognised in the 1948 Universal Declaration of Human Rights (UDHR). [1]

The language of the declaration indicates that the international community considers a right to intellectual property to be a human right vested in individual 'authors' (including inventors). The existence of such a moral interest implies that an author's right to prevent others from appropriating or otherwise interfering with his or her work emerges from the very fact that the author is responsible for the work's creation. The right to a material interest suggests that where commercial use is made of the work, the author should be compensated, whether or not he or she is its legal owner.

These sentiments reflect continental Europe's legal tradition, which emphasises the moral rights of authors far more than does that of Britain, the United States or the Commonwealth countries. France, where authors' moral rights are perpetual, was particularly insistent that the UDHR contain provisions on intellectual property.

Implications of an international covenant

The principle that an intellectual right is also a basic human right became legally binding when the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force in 1976. [2]

Article 15.1 of this covenant states that its parties (of which there are currently 146) must "recognise the right of everyone to benefit from the moral and material interests resulting from any scientific or artistic production of which he is the author". This right is balanced with the right also "to take part in cultural life" and "to enjoy the benefits of scientific progress and its applications".

Three important points can be made about the implications of this covenant for international debates on IPR law. First, Article 15.1 affirms that the general public has a legitimate interest in intellectual productions and a right to benefit from them. Policy makers are therefore required under this agreement to strike a balance in national and international legislation between the interests of 'authors' and those of the wider society.

Second, governments drawing up patent and copyright regulations are in practice usually motivated more by the expectation of positive economic consequences than by considerations of morality. In other words, while they may agree with the moral principle that authors should receive an appropriate reward from society for their efforts, their prime concern tends to be practical one, albeit one that is also consistent with the ICESCR: that IPRs should contribute to the scientific, cultural and economic enrichment of society.

Third, in the modern world, 'authors' — including, for example, researchers who work for private corporations — often assign copyrights and patents to their employers (or publishers). According to the ICESCR, the individual must receive benefits to compensate for this.

Looking into alleged conflicts

Is there a conflict between intellectual property and other human rights? That depends. As Article 15.1 of the ICESCR makes clear, a balance needs to be struck between the rights of the producers of intellectual property and the legitimate interests of the general public. It is possible that the legal rights extended to producers could in some cases be inadequate for them to realise their legitimate moral and material interests. But for others they may be too strong.

And the World Trade Organisation's Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) — which requires governments to set high minimum standards of IPR protection and enforcement — has raised concerns that legal rights may be getting too strong and creating tensions with other agreed standards of human rights norms.

In August 2000, for example, the sub-commission on the Promotion and Protection on Human Rights of the United Nations Commission on Human Rights adopted a resolution on 'Intellectual Property Rights and Human Rights'. This was partly spurred by the initiative of the World Intellectual Property Organisation to hold a panel discussion on Intellectual Property and Human Rights in 1998. [3]

While the sub-commission's resolution has no legal status, it has attracted a great deal of attention to this issue. The "actual or potential conflicts" it refers to are:

• impediments resulting from the application of IPRs to the transfer of technology to developing countries;
• the consequences of plant breeder's rights and the patenting of genetically modified organisms for the enjoyment of the basic right to food;
• the reduction of control by communities (especially indigenous communities) over their own genetic and natural resources and cultural values, leading to accusations of 'biopiracy'; and
• restrictions on access to patented pharmaceuticals and its implications for the enjoyment of a basic right to health.

The resolution also requested that the World Trade Organisation fully take into account the obligations of member states under the international human rights conventions to which they are parties during its ongoing review of TRIPS.

In August 2001, the sub-commission considered two reports on the relationship between intellectual property rights and human rights in general, and on the impact of TRIPS on human rights. In response, another resolution was adopted which essentially reiterated the sub-commission's view that actual or potential conflict exists between the implementation of the TRIPS Agreement and the realisation of economic, social and cultural rights. The resolution also stressed the need for adequate protection of traditional knowledge, and emphasised the sub-commission's concern for the protection of the heritage of indigenous peoples. [4]

Lessons for TRIPS

Whether these concerns are justified, and if so to what extent, the resolution passed by the commission does not state that IPRs per se conflict with human rights. Rather it is suggested that problems lie in the implementation of the international TRIPS agreement. The agreement does not itself explicitly refer to human rights. But it does acknowledge that a balance needs to be struck between the interests of producers and users, both to ensure that each side benefits, and to enhance social and economic welfare more widely.

No-one disputes that while TRIPS implies that economic criteria should guide the search for such a balance, governments are free to apply additional factors — such as international human rights norms — in drawing up domestic legislation. Indeed, they are required to if they are contracting parties to the ICESCR. What is debated by some, however, is whether governments claiming evidence of conflicts with human rights would still have to observe the minimum standards of protection and enforcement of IPRs as defined by and required under TRIPS.

According to the sub-commission, human rights obligations should take priority over economic agreements. But revising TRIPS to take this into account is likely to be opposed by many governments in future trade rounds. It is also likely to be opposed in future meetings of the Council for TRIPS — the body of the World Trade Organisation which oversees the implementation of TRIPS and carries out periodic reviews — at least until there is greater clarity concerning the alleged points of potential conflict between intellectual property and human rights than there is at present.

The author is based at the Queen Mary Intellectual Property Research Institute, University of London.