Topics Covered in this article
Intellectual property regimes seek to balance the moral and economic rights of creators and inventors with the interests and needs of the wider society. An important justification for patents and copyrights is that incentives and rewards for inventors result in benefit to society. For example, the United States Constitution, written in 1787, gave Congress the power to “promote the advancement of science and the arts by granting authors and inventors exclusive rights to their writings and discoveries for a limited time.” Two hundred years later, the World Intellectual Property Organization (WIPO) combines the existence of a fair and modern patent system with incentives for ingenuity and innovation, a willingness to invest in industrial applications, and a favorable climate for technology transfer.
The human rights approach to intellectual property often has an implicit trade-off between the rights of inventors and creators and the wider public interest in the intellectual property paradigm, making it clearer and more sophisticated. The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the main international human rights instrument dealing with this issue. Article 15 states that the Contracting States, i.e., Parties that have ratified or acceded to this instrument “recognize the right of everyone” to “enjoy the benefits of scientific progress and its application” and “to benefit from the protection of the moral and material interests arising from any scientific person., literature or artistic production”.
In this paper the author has tried to analyse the relation between the two distinct fields of law, the way they are interrelated and can help the society.
ADAPTATION IN INDIA
The intellectual property rights and human rights are two distinct fields of law which have evolved independently to a large extent and have remained strangers since a long period of time. On one side where intellectual property rights is a set of statutorily recognized rights, these rights help in providing incentives to the individual of this society for their participation in the private sector and also contribute in the field of technological development. Some intellectual property rights are monopoly rights in nature, for example patents. This type of monopoly right is provided by the society in response to certain concessions like information disclosure and this right is provided for a limited duration. While on the other hand, human rights are said to be the fundamental rights which are inherent and are linked to human dignity, these rights are also acknowledged by the state government.
Even though these two rights are very distinct from each other, there are some different kinds of links which are seen between intellectual property rights and human rights. For instance, patent laws also acknowledge that there is an element of socioeconomic dimension between the rights given to the people and also that a balance must be managed between the interests of the patent holder and the broader interests of the people of society. But even after tracing down certain links between both the rights, intellectual property rights directly or indirectly have an impact on the realization of human rights. For instance, intellectual property rights consist of both economic and moral elements. And the moral elements can be linked to human rights to a certain extent.
Now finally, the human rights treaties have recognized certain rights in the context of the field of science and technology. The human rights law’s document of foundation in the year 1948 by the Universal Declaration of Human Rights has protected the moral and material interest of the authors in the field of scientific, literary or artistic production and has considered it as part of the catalogue of fundamental liberties. Some of the similar clauses were seen to be added in the International Covenant on Economic, Social and Cultural Rights (ICESCR) in the middle of 1960’s which are now confirmed by nearly 150 nations. But even though after some adaptation by human rights, it still remains the normative backwater in the field of human rights, and is always the neglected side of law by treaty bodies of the human rights, experts, and commentators while on the other hand all the other rights appeared from the jurisprudential outline.
With the evolution of human rights since World War II resulted in the de facto separation in various categories and among all these various categories the least well developed are the economic, social, and cultural rights and have also received least prescriptive, and has started to receive significant jurisprudential attention only in the last decade.
Even on the same hand when we talk about intellectual property rights no remarks about human rights appear in the major treaties of intellectual property for instance, if we talk about the Paris and Berne Conventions, or more recently in the adoption of TRIPS Agreement. Even though all these treaties talk about the type of protection provided to all authors and inventors in the form of rights, but then to the principal explanation of all these agreements does not lie in the moral or ethical claims about absolute liberties, but instead it lies in the economic and instrumental benefits which help in protecting the products of the intellectual property all across the national borders.
THE FUTURE OF THE RELATIONSHIP – CONFLICT OR COEXISTENCE?
We know that law regarding human rights and intellectual property rights (IPR) are two very different areas of the legal system. Even though they are two very distinct areas of the Indian legal system, there have been traces found after seeing which it can be said that both of these areas of law are interrelated with each other to some extent. Regarding this, there are two type of view which is to be seen in the field of legal system, firstly it is to be seen that the law regarding IPR infringes upon the various areas of Human Rights, especially when we talk about the economic, social and cultural rights and both of these laws are in a fundamental conflict with each other. On the other hand, another view is that both IPR Law and Human Rights law be in coexistence with one another.
It is a never-ending debate between advocates who have a conflicting approach and the people who have techniques regarding the coexisting of human rights and intellectual property rights. While contrary to this when we talk about this two-competing framework of the Indian legal system in the context of the international legal system there are various distinct consequences.
First of all, these consequences can result in an increase in the incentives in order to provide less strict laws to match up with the human rights norms. It is an essential task of all those lawyers who are dealing with the issues of human rights over intellectual property rights protection rules to see which of the right is being affected with the change in the protection rule of intellectual property rights. Which cannot be easily done only by looking at the text of the treaty even though few issues appear under the narrow conflicts’ rules of customary international law but then they don’t tell the full story. Laws regarding human rights are considered to be elastic in nature as they contain different varieties of mechanisms in order to develop a more detailed legal guideline over a period of time for all the sections of this society.
All those advocates who are having a conflicting approach towards intellectual property are possibly able to press all the human rights bodies in order to develop certain specific interpretations regarding some debatable rights with a view to compete with the precise and clearly defined rules in the TRIPS Agreement. Which will act as a fuel for future conflicts claims, and it can also result in speeding up the process of jurisprudential evolution in the field of economic, social, and cultural rights which is an underdeveloped area of law while talking in the context of human rights.
Second consequence which the two competing frameworks can face is regarding the model shift which can come up while dealing with the consumers of the product of intellectual property as the possessors of the internationally guaranteed rights. When we talk in the context of the TRIPS Agreement, the only ‘right’ holders of the intellectual property are the producers and owners of the product of the intellectual property and the other individuals or groups who are the consumers. All these products are considered to be of inferior status in the context of users. While on the other hand, according to the human rights view towards intellectual property, all the users of the product of intellectual property are considered of equal status as compared to the owners and producers.
When we talk about the linguistic type of arrangement of all the states it is not just a matter of semantics, but it also helps in shaping a good and strong state negotiating strategies. And by invoking the norms of intergovernmental organizations which is supported by various states collective as a member, regarding which the governments of different state can more easily argue about while stating it as a balancing process of intellectual property standards which is a part rational effort to settle between the two competing authorities of internationally recognized “rights,” instead of stating it as a self-interested attempt in order to free ride on foreign creators or inventors.
This thing gives rise to the third type of consequence between human rights and intellectual property rights which can be named as the declaration of the “maximum standards” of intellectual property protection. All the treaties from Berne to Paris to TRIPS are all concerned with declaration of the “minimum standards”. In the beginning, the whole journey of intellectual property rights started with a bilateral agreement between the natins of Europe which was almost restricted to the developed countries. And the indication of its modernisation came along with the increase in the number of followers of these multilateral treaties took place by the end of the 19th century through the coming up of two treaties: The Paris Convention of Industrial Property (1883) and the Berne Convention of Literary and Artistic Works (1886).
But these higher standards are not considered to be troublesome, these treaties do not stop the government from approving any strict domestic intellectual property laws, or from entering into any agreement that embodies such standards. Truly, since the time the TRIPS Agreement came into force, the United States and the EC have negotiated the “TRIPS plus” a bilateral agreement with many developing countries. These bilateral treaties impose a higher standard of intellectual property protection as compared to what TRIPS requires. These treaties of “TRIPS Plus” are strongly opposed by the United Nation High Commissioner for Human Rights and the World Health Organisation on the grounds of human rights. Now together with the specialisation of these soft law norms which were discussed earlier, all these objections maybe, for the first time, started to impose a restriction on the change in the standards of the intellectual property which is still an ongoing issue since the past decades.
CONCLUSION & SUGGESTIONS
From the above discussion upon the conflict and coexistence of intellectual property rights and human rights it can be said in conclusion that it can be difficult to maintain such privileges of the intellectual property rights in a democratic society like our country when it is already clearly shown about the threat over most of our fundamental rights. So, if the domain of the intellectual property right is challenged, the only reason for it can be because it is a threat over the fundamental rights of an individual of the society. Even on the same hand, it is also very difficult to believe that such a kind of privilege can also appear to be valid by accepting that fundamental freedoms and rights of an individual must never be called into question.
But this conflict can be resolved by adopting certain ways by both of the bodies like: the human rights bodies can develop a specific interpretation of all the ambiguous rights dealing with economic, social and cultural rights so that the human right bodies can also compromise with the terms of the TRIPS Agreement. And if we view this agreement from the perspective of human rights then the consumers of the product of intellectual property will be considered on the same footing as the owner of the product and will also become the holder of the internationally guaranteed rights. And lastly, all these international forums on intellectual property rights, such as the World Intellectual Property Organisation (WIPO), the World Trade Organisation (WTO), etc., while making new laws regarding the intellectual property rights, should also analyze the laws from the perspective of the human rights bodies and then should make the laws. By adopting all these ways, it can be possible that the law regarding both human rights and intellectual property rights can coexist with one another without any conflict.