Before scrutinising the concept of intellectual property as a human right, it needs to be noted that in the domain of industrial property rights,68 patents these days are commonly held by corporations – the employer of an inventor – rather than by the individual inventors themselves.69 Therefore, when considering the concept of intellectual property as a human right, it is important to consider whether corporations can be beneficiaries of human rights law. This is a controversial issue, as human rights are inherently connected to human dignity, recognising the equal worth of all human beings, aiming at the protection of fundamental human interests. Corporations, on the contrary, are legal entities and not human beings. If it is then proposed that human rights can be held by corporations, there is a risk that if such rights conflict with the rights of natural persons, the protection of human life in dignity is jeopardised.70 It is therefore questionable whether IP rights held by corporations should be conceded the status of human rights.71
65 de Feyter K (n 3) 8.
66 ibid 15-16.
67 cf. Stuhldreier M, ‘The Trans-Pacific Partnership Agreement and its Threats to the Affordability of Medical Products in Developing Countries’ (2016) 19 Trinity C.L. Rev. 175, 187-191.
68 As mentioned in note 11 in the introduction to this thesis, IP rights can be subdivided into specific categories, including ‘industrial property rights’, the category to which patents belong.
69 cf. Gordon WJ, ’Current Patent Laws cannot claim the Backing of Human Rights’ in Grosheide W (ed), Intellectual Property and Human Rights: A Paradox (Edward Elgar Publishing 2010) 167;
WIPO, ‘Frequently asked Questions: Patents’ <https://www.wipo.int/patents/en/faq_patents.html>
accessed 23 May 2019.
70 de Feyter K (n 3) 46.
71 Grosheide W, ‘General Introduction’ in Grosheide W (ed), Intellectual Property and Human Rights: A Paradox (Edward Elgar Publishing 2010) 26.
137 As IP rights can also be held by natural persons, the controversy surrounding the question of whether IP rights constitute human rights is even deeper, and two main diverging views can be identified. The first sentiment suggests that by protecting private interests, IP rights are fundamentally incompatible with the public law character of human rights.72 Likewise, human rights generally belong to all human beings without a limitation in time, while IP rights under trade law, conversely, are subject to registration and limited in their duration.73 In the light of these arguments, IP rights cannot be regarded as human rights.
The second opinion, on the contrary, contends that IP and human rights are cohesive in the sense that, similar to the human right to property more generally, human rights provide the foundation for the recognition of IP rights.74 In effect, the perception of IP as a human right is principally based on the recognition of the human right to property, suggesting that IP is virtually identical to property in tangible assets.75 In reality, however, there is a fundamental difference between IP and property in tangible assets, in that IP protects knowledge which is a ‘non-contentious resource’76 that does not necessarily lose its value if it becomes more widely available.77 If anything, the value of knowledge to society can increase, the greater its accessibility.78 In his role as the first U.S. Patent Commissioner, Thomas Jefferson insinuated that the protection of
72 cf. ibid 5.
73 Cornides J, ‘Human Rights and Intellectual Property: Conflict or Convergence?’ (2004) 7 Journal of World Intellectual Property 135, 146; Drahos P (n 15) 366.
74 cf. Grosheide W, ‘General Introduction’ (n 71) 5.
75 Cornides J (n 73) 139.
76 Tangible goods, such as land, livestock, harvest, or producer and consumer goods, are commonly limited in their quantitative availability, and therefore ‘contentious resources’. Such goods seemingly have their highest value, both for individuals and for society, if they are privately owned, as private ownership enables the owner to reap the fruits of his/her property, and because private ownership commonly safeguards that such assets are maintained. Cornides suggests that if such assets were available to everyone alike, for example in the form of common ownership, there would be a potential risk that everyone would make use of such goods without tending for their sustainability. Intellectual property, on the contrary, is non-contentious in that the protected knowledge is not limited in quantity and cannot be over-exploited. See thereto: Cornides J (n 73) 147.
Cornides uses the term rivalrous’, which I have replaced with the more familiar term ‘non-contentious’.
Lastly, while it is submitted that the concept of common ownership may in reality not prove to be as bleak as suggested by Cornides, the example nevertheless indicates the substantial difference between property in limited tangible assets, and the IP in knowledge.
77 Cornides J (n 73) 147.
78 ibid.
138 patents, and thereby of IP, is not comparable to the protection of property in tangible assets.79 In a letter to Isaac McPherson dated 13 August 1813, Jefferson wrote:
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.80
It can thus be suggested that, because of the considerable differences between IP and property in tangible assets, IP does not qualify as a human right based on the concept of the right to property alone. This interpretation is not unanimous, however, as notably the ECtHR proposes that the right to property under Article 1 of Protocol 1 to the ECHR is not limited to physical property, and thus implicitly includes the right to IP.81 Even when following the interpretation that IP fails to qualify as a human right under the right to property, IP may nevertheless constitute a human right, if it is expressly recognised as such by international human rights law. In this regard, while the UDHR does not directly refer to the term IP, Article 27(2) UDHR provides for the ‘protection of the moral and material interests resulting from any scientific, literary or artistic production’ of authors, which could be construed as a human right to IP.82 The protection interest of authors, however, is balanced against the public interest by Article 27(1) UDHR stipulating that everyone has the right ‘to share in scientific advancement and its benefits.’83 Similarly worded, Article 15 ICESCR provides a right to the protection of the moral and material interests of authors of scientific, literary or artistic production in paragraph (1)(c) and a right of the public to share the benefits of scientific progress in paragraph (1)(b).84 The CESCR further reaffirmed that IP serves a social function and should therefore ultimately be aimed at the promotion of human well-being.85 Consequently, it must be acknowledged that the protection interests of
79 ibid 150.
80 Washington HA (ed), The writings of Thomas Jefferson Vol. VI. (Taylor & Maury 1855) 181.
81 Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, 20 March 1952) [Protocol 1 to the ECHR], Article 1; Brown AEL (n 55) 46; Cornides J (n 73) 140.
82 UDHR (n 10) Article 27 (2); cf. Drahos P (n 15) 358; Cornides J (n 73) 139.
83 UDHR (n 10) Article 27 (1); cf. Drahos P (n 15) 358.
84 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) [ICESCR], Article 15(1)(b) and (c); cf. Drahos P (n 15) 358;
Cornides J (n 73) 139.
85 Committee on Economic, Social and Cultural Rights (CESCR), ‘Statement on Human Rights and Intellectual Property’ (14 December 2001) UN doc. E/C.12/2001/15, para 4.
139 authors and creators need to be adequately balanced against the public interest in the accessibility of intellectual products, so that IP rights need to be drafted in a way that respects the public right to access scientific advancements.86 This limitation of IP rights, established within the doctrine of human rights law, is reflected by the objectives and principles of Articles 7 and 8 of the TRIPS Agreement for IP rights under private international law.87 It follows that the rights of creators cannot be absolute, which indicates that states have a duty to implement a system of IP protection that strikes an adequate balance between private and public interests.88
As can be seen, it can be suggested that the protection of certain forms of IP – namely scientific, literary and artistic productions – seemingly constitute a human right. It is argued by Brinkhof, however, that the term ‘scientific production’ is not synonymous with the term ‘invention’, as required by patent law.89 As neither patents, nor inventions are explicitly referred to by human rights law, it may be suggested that not all types of IP are necessarily protected as human rights.90 Brinkhof therefore proposes that there is no human right to patent protection.91 This view can be supported by acknowledging that patents under current international IP legislation fail to fulfil the requirement of Article 27(2) UDHR and Article 15(1)(c) ICESCR which aim at the protection of the authors of scientific production.92 Patents, in contrast, are regularly granted to persons who are not the original creator, such as the corporations or institutions that employ a successful inventor. A human right to IP is intended to
‘safeguard[] the personal link between authors and their creations’.93 Therefore, the CESCR clarifies in General Comment No 17 that only the author or creator can be the
86 Grosheide W, ‘General Introduction’ (n 71) 5; Matthews D, ‘Intellectual Property Rights, Human Rights and the Right to Health’ in Grosheide W (ed), Intellectual Property and Human Rights: A Paradox (Edward Elgar Publishing 2010) 121; Drahos P (n 15) 359.
87 Grosheide W, ‘General Introduction’ (n 71) 15; See thereto: Chapter 2.4.2.3.
88 cf. United Nations Economic and Social Council (ECOSOC), ‘The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights’ (27 June 2001) Un Doc E/CN.4/Sub.2/2001/13, paras 10-15; Matthews D, ‘Intellectual Property Rights, Human Rights and the Right to Health’ (n 86) 122.
89 Brinkhof J, ‘On Patents and Human Rights’ in Grosheide W (ed), Intellectual Property and Human Rights: A Paradox (Edward Elgar Publishing 2010) 147-148.
90 ibid.
91 ibid 153.
92 Gordon WJ (n 69) 159-160.
93 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant) (12 January 2006) UN Doc E/C.12/GC/17, para 2.
140 beneficiary of human rights protection under Article 15(1)(c) ICESCR.94 Furthermore, as human rights are inalienable, they cannot be assigned to another person, because, as elaborated above in 3.1.1, they cannot be voluntarily surrendered.95
It can be concluded that in the light of the current understanding of patents, there seems to be no human right to patent protection under international law, particularly when patents are held by corporations. Once a patent – or any other type of IP for that matter – has been granted, however, it may qualify as regular property and should then be protected by the human right to property, as provided for by Article 17 UDHR.96 Article 17 stipulates the right of everyone to own property, and protects against arbitrary expropriation.97 Like the protection of the rights of authors under international human rights law, the right to property is limited and can be restricted for public interests, at least in regional human rights treaties, for example under Article 1 of Protocol 1 to the ECHR and under Article 14 of the African Charter on Human and Peoples Rights.98
While patents are not explicitly recognised by human rights law on an international level, they may still be regarded as human rights in a regional context. The Charter of Fundamental Rights of the European Union (EU Charter), for instance, not only provides a general right to property in Article 17(1), but furthermore explicitly stipulates in paragraph 2 that ‘Intellectual Property shall be protected.’99 While it is noteworthy that again patents are not explicitly mentioned,100 it must be acknowledged that by direct reference to the term IP, Article 17(2) of the EU Charter is more inclusive of different types of IP than both the UDHR and ICESCR. As the EU Charter does not provide any limitation to the term ‘intellectual property’, it can be suggested that, by conventional definition of IP, patents are included and thus protected as a human right under the EU Charter. While Article 17(2) gives little guidance on how IP shall be
94 ibid paras 1-7; Gordon WJ (n 69) 160.
95 CESCR, General Comment No. 17 (n 93) para 1; Gordon WJ (n 69) 167; Woods K (n 2) 6.
96 Brinkhof J (n 89) 153; Drahos P (n 15) 358.
97 UDHR (n 10) Article 17.
98 Protocol 1 to the ECHR (n 81) Article 1; African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986), Article 14; cf. Karamanian SL (n 16) 240;
Drahos P (n 15) 359.
99 Charter of Fundamental Rights of the European Union (ratified 7 December 2000) [EU Charter of Fundamental Rights], Article 17(2); cf. Brown AEL (n 55) 46; Cornides J (n 73) 140; Grosheide W, ‘General Introduction’ (n 71) 18-19; Matthews D, ‘Intellectual Property Rights, Human Rights and the Right to Health’ (n 86) 123.
100 cf. Brinkhof J (n 89) 152.
141 protected, it has been elucidated, in particular by the drafting committee of the EU Charter, that the right to IP protection is subject to the conditions of the general right to property under Article 17(1).101 Hence, IP protection under the EU Charter has again to be balanced against the broader public interest.
In the final analysis, a convincing argument can be made proposing that the right to IP generally constitutes a human right, although it is not conclusively clarified whether this equally extends to patents, at least on a global level. At the same time, it can be submitted that conceptually IP does not belong to the category of fundamental human rights. For the purpose of this thesis, I propose that fundamental rights are those rights that are fundamental for human existence and well-being. It is therefore submitted that the protection of private monetary interests cannot be compared to the importance of fundamental human rights, protecting human life in dignity.102 The classification of rights as fundamental serves the purpose of emphasising specific supremely important values, thereby implying a hierarchical structure. It follows that in cases of conflict between fundamental and non-fundamental rights, fundamental rights should be prioritised. Consequently, if all human rights were awarded a fundamental status, the concept would become meaningless as no right could be prioritised.103 It further follows that both the right to property and the right to IP cannot be regarded as absolute, as their protection is conditioned by the broader public interest, and aimed at contributing to the common good and welfare of society.104 Thus, states are permitted not only to provide limitations to the protection of property in the public interest, but arguably further to adjust them to economic and social circumstances.105
Additionally, it must be acknowledged that the protection of IP as a human right fundamentally differs from the extensive protection granted under international trade and IP law.106 In this respect, the CESCR notes:
101 Brown AEL (n 55) 47; Matthews D, ‘Intellectual Property Rights, Human Rights and the Right to Health’ (n 86) 123.
102 cf. Drahos P (n 15) 366.
103 Cornides J (n 73) 138.
104 Karamanian SL (n 16) 242; Matthews D, ‘Intellectual Property Rights, Human Rights and the Right to Health’ (n 86) 122.
105 Cornides J (n 73) 137; Drahos P (n 15) 360.
106 cf. Brown AEL (n 55) 25; de Feyter K (n 3) 182; Gordon WJ (n 69) 157; Matthews D, ‘Intellectual Property Rights, Human Rights and the Right to Health’ (n 86) 124; CESCR, General Comment No. 17 (n 93) para 2.
142 The fact that the human person is the central subject and primary beneficiary of human rights distinguishes human rights, including the right of authors to the moral and material interests in their works, from legal rights recognized in intellectual property systems. […] Human rights are fundamental as they derive from the human person as such, whereas intellectual property rights derived from intellectual property systems are instrumental, in that they are a means by which States seek to provide incentives for inventiveness and creativity from which society benefits.
[…] While intellectual property rights may be allocated, limited in time and scope, traded, amended and even forfeited, human rights are timeless expressions of fundamental entitlements of the human person. Whereas human rights are dedicated to assuring satisfactory standards of human welfare and well-being, intellectual property regimes, although they traditionally provide protection to individual authors and creators, are increasingly focused on protecting business and corporate interests and investments.107 (footnote omitted)
It is therefore crucial to differentiate between the human rights attributes and the non-human rights attributes of IP.108 In particular, it is suggested that the purpose of the human right to IP is not to secure a monetary right for creators, but rather to protect them from arbitrary governmental repression.109 Thus, the human rights protection of IP cannot encompass the same private exclusive rights as granted to IP under international trade law. Otherwise, the construction of IP as a human right would entail the risk of elevating a right to a monopoly to a human rights standard, even where this is detrimental to society at large.110 According to Dreyfuss, the human rights recognition of IP should therefore not be furthered by providing ‘full control over the information that creative labor produces.’111 Instead, human rights claims to IP must undoubtedly be limited by the human rights claims of the public at large.112
For the purpose of this thesis, it can be particularly emphasised that states should ensure that IP rights do not complicate the protection of the right to health, particularly with respect to unreasonably high pricing of patented products impeding the affordability of medicines, as further elaborated in chapter 4.2.2.113 As elaborated above, international instruments recognising IP as a human right provide for a balance
107 CESCR, UN doc. E/C.12/2001/15 (n 85) para 6.
108 Yu PK, ‘Ten Common Questions About Intellectual Property and Human Rights’ (2007) 23 Georgia State University Law Review 709, 738-739.
109 Gordon WJ (n 69) 163.
110 cf. Grosheide W, ‘General Introduction’ (n 71) 30.
111 Dreyfuss RC, ‘Patents and Human Rights: Where is the Paradox?’ in Grosheide W (ed), Intellectual Property and Human Rights: A Paradox (Edward Elgar Publishing 2010) 73.
112 Gordon WJ (n 69) 159.
113 Brown AEL (n 55) 25.
143 between the rights of creators and the public interest, suggesting that private national and international IP laws need to be shaped in a way that pays due regard to this balance. As further elaborated in chapter 4.2.3, the current international patent regime, as established by the TRIPS Agreement, seemingly does not adequately reflect this balance, wherefore it must be called into question whether private international IP rights under the WTO system can be regarded as being in accordance with the requirements of the human right to IP.114
IP rights and other human rights, however, do not necessarily conflict and can, if appropriately applied, support each other.115 To this end, IP rights need to be balanced with essential other human rights, in order to reshape the understanding of their relationship towards one another.116 As a result, human rights could assist the designing of IP rights, and IP rights could then be utilised for the promotion of other human rights, by incentivising the development of vital public goods.117 Furthermore, when establishing a hierarchy between fundamental and non-fundamental human rights, IP as a human right could be more explicitly balanced with other human rights.118 Thereby, if adequately implemented, IP as a human right could, in theory, facilitate the identification of a hierarchy between the rights of creators and other human rights within human rights doctrine, which would eliminate the difficulty of establishing a hierarchy between different systems of international law, as discussed in the next section. For this approach to be effective, however, the concept of IP as a human right requires further authoritative interpretation.