To analyze the relationship between once two separate fields yet contemporarily conflicting with each other, the term Human Rights, Intellectual Property rights, and Intellectual property Law must be defined. The analysis will mainly focus on the areas of the ‘Right to education’, ‘Right to Life’, ‘Right to health’, ‘Right to Information’’, Right to Culture’, and ‘Rights of Indigenous people’. To prove my facts, the Universal Declaration of Human Rights (UDHR), TRIPS agreement with other relevant conventions, Intellectual Property Act No 36 of 2003 (Sri Lanka), and relevant case laws will be used.
What is an Intellectual Property and Intellectual Property Law?
Intellectual property simply refers to the creation of the mind such as inventions, literary and artistic works, symbols, names, and images used in commerce1. World Trade Organization (WTO) referring to the UDHR emphasizes that every person has a right to the creation of his mind for some time2. Intellectual Property Law is the regime of law that deals with the protection and enforcement of Intellectual Property Rights which are sprayed into wide areas such as Patent law, Copyright law, and Trademark law. etc.
The Relationship between Human rights and Intellectual property Rights
For centuries, Human Rights and intellectual property rights were strangers from one another4. Yet emerging trends in comparing Human Rights and Intellectual Property Rights are getting furiously intimate. Before reaching these two and analyzing it’s essential to know the characteristics of these two sets of rights, whether they can move hand in hand
Human Rights are inalienable rights common to all and enjoyed by humans just because they belong to the Homo-sapiens family. Hence, Human Rights are common to all, there is no expiration date, it's inalienable, Universal and no one grants them to you and no one can remove them from you. When it comes to Intellectual property rights, one can own, alienate, and license for a certain period. Which creates a clear distinction between these two sets of norms fundamentally. Though the enforcing mechanism contradicts other rights, Article 27 of UDHR is evident that Intellectual property rights a Human Rights. If so, what is the reason for being in rivalry groups in an ongoing debate? According to ‘Helpfer’, there are two historical facts.5
Consequences of linking Intellectual property and trade through the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement6.
Negligence on the Rights of the Indigenous people.7
These two events exposed most of the normative differences in the Intellectual property regime from a Human Rights perspective. To analyze the Human rights violation under Intellectual Property Law, the discussion may follow throw these two streams. It is important to recognize that the conflict is between Human Rights and Intellectual Property Law and not Intellectual Property Rights.8
The Laws relating to intellectual property contain internationally accepted treaties (mainly the TRIPS agreement) and local legislations that follow the WTO standards which claim to violate certain Human Rights on many fronts.
Consequences emerged from the TRIPS Intellectual Property law
TRIPS is the main instrument concerning Intellectual Property introduced by WTO which provides obligations on member countries to protect Intellectual property rights. Also, it required member states to enact local legislation to set minimum standards of Intellectual property rights introduced by the treaty. Since those minimum standards set out by them are unfairly rigid those may amount to violating acceptable Human Rights such as,
Patent regulations on manufacturing pharmaceutical products and the Right to health with the Right to life
Copyright law acts as a barrier to the freedom of Education, Expression, and the Right to information.
Trademarks and Industrial designs as violating the Right to expression.
Right to health and Right to life Affected by Patent Law
Right to health is “a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity9”. According to The World Health Organization, states should provide adequate health services, goods, and facilities including essential medicine to their citizens depending on the availability of resources10. Medicine/Drugs are subjected to potential protection. Which gives the monopoly to patent holders of the drugs to control the economic benefit they receive11. Hence, they have the freedom to place the price on drugs and regulate them. Pharmaceutical items including Drugs play a major role in the health of a person. This makes it a key ingredient of the Right to health which promotes the Right to Life. Since the monopoly of the price of drugs is handled by private individuals but not state parties, normally the price fluctuates according to the scarcity of the product which is also controlled by the private individual. This situation is more like a substantial part of the Right to Health has been privatized.
Since the monopoly is with the patent holder and the TRIPS agreement does not allow to make subsidiary products, for example, producing the same Drug by following a different process was accepted under the Indian Intellectual Property Act and was abolished by the new Intellectual Property Act amendment introduced in the year 200512. Hence, genetic Medicine, the law of price alternation that contains the same chemical elements as patented high-price medicine was abolished. As a result, drugs like ‘Antiretroviral Therapies’ (ARV) which are commonly used for HIV-infected patients13 were not adequate. Only 31% of India can afford the drug. Specially youngsters between the ages of 15 - 18 only 15% were wealthy enough to buy the drugs from a patent holder. The situation in Africa is waste there only 6% were capable of buying the product. Thus, millions were dying every day, and every minute a person is craving for his life, and his family or loved ones can do nothing because the TRIPS agreement says otherwise.
Article 3 of UDHR 14accepts the right to life along with Article 25 (1) 15 of the same declaration where they accept the right of the standard of living with adequate health support for the well-being is violated because the TRIPs agreement proposes in its article 28 (See Annexes A) the state should issue product patent and put a higher burden of proof about the on-process patent in article 34 (see Annexes B) of the agreement. The newly emerged TRIPs regulation on protecting the commercial and trade rights on Intellectual property is disturbing in accessing medicine that affects the Right to health and in general The Right to Life.
It is not only the medicine that affects a person's health. Food and agricultural items also play a key role in the Right to have adequate nutrition is also challenging. Since the TRIPS, new seeds that give a better and more nutritious harvest are not allowed to be used in developing countries most of the time because they cannot afford the technology. Also, Human Rights Adoption Resolution 2000/7 on Intellectual property Rights and Human Rights stresses 5 ways TRIPS possibly violate Human Rights and 3 of them are related to patent law,16
The transfer would stop to developing countries.
Right to the food of plant breeders and right of genetically modified organisms
Bio-Piracy
Were listed out.
Because a living organism can be owned under a patient as mentioned in the case of Diamond V Chakrabarty17. Hence, in the case of planting genetically advanced seeds would cost a buckload of money. Even though the license of a patent is purchased from the patent holder it is impossible to make any modifications, see the case Monsanto Co. v. McFarling18, here the court helped the purchase licenses from the patent owner would not amount to make any modification on such seeds. Which is a clear violation of the Right to self-determination.
Right to Education, Right to Information, and Copyright law
Intellectual property Rights related to literal and artistic work fall under this category covered by copyright law. It protects both the moral and economic Rights of the creator as soon as the idea fixed the work in an expression.
Since copyrights do give the author the power to control the economic value of his product make it unavailable to much general public. The right to Education is well established and adopted by the International Covenant of Economic, Social, and Cultural Rights (ICESCR)19 which contains the characteristic of the ability to access study materials20. Indeed, education is not all about books but because of the unbearable prices of copyright holders, many struggle to enjoy their right to freedom and the Right to Information because they cannot afford to have relevant materials. A recent Ramashwari Photocopy case21 is evident where an Indian college of high education is sued for the fact that they have distributed photocopies of certain textbooks court recognized ze the act was done with the intention of fair use of the product, still the reason they had to photocopy is the price of such textbooks. The scarcity of educational material is a product of copyright holders building up a higher demand.in other words, high prices and the scarcity of educational materials a copyright reasons 22. It seems unfair According to the Berne Convention Article 07 the validity of copyright lasts for the lifetime of the author and 50 years after his death since it cannot make any advancement to his original work until then except without his consent. In the case of Wasantha Obesekara v A C Alles23 this view is emphasized by the court with a decree claiming any adjustment to the original work without the consent of the copyright owner is an offense. This was again seconded in the case of Lalitha Sarathchandre V Upul Santha Sanasgala24.
Copyrights hold not only the Right to Education but also the Right to Information as well. In the case of the Associated Newspaper of Ceylon V Amarasinghe 25 it was held that a copyright violation occurred when a photo the plaintiff had taken was published, without mentioning the name of the photographer, to inform the public about the situation in 1982 in Sri Lanka where live cremations happened beside every road. Even though, such cases as RP Limited v Indian Newspaper Limited 26where the Supreme Court recognized the Right to Information as a necessary precondition to democracy and the Sri Lankan Constitution expressly adopted the right to Information as a Fundamental Right27 still the copyright legal remedies can and overrule according to the discretion of the judge.
But on the other hand, copyrights do protect the right to express. Because it protects the expression of an idea and not the expression itself it can consider the copyright law is uplifting the Right to Express.
Right to culture and Rights of Indigenous people
Not only were civil and political rights challenged under the TRIPS/WTO regime but also cultural Rights under ICESCR too. Right to culture According to UDHR article 27 and ICESCR article 01, everyone has a right to enjoy the art and share. However, copyright law prohibits certain practices from acting as a barrier and the ownerships claimed by a group of individuals do not allow them to practice the culture and develop it under Copyright law. The case Wijerathne Warakagoda V Sangeeth Wijesooriya is one example of the cultural berries not allied to be modified. Which violates the Right to enjoyment of the culture itself! Because of copyrights, the mobility of the culture is limited to a few known people in the society which starts the downfall of the culture itself.
According to the office of the High Commissioner of Human Rights, Indigenous peoples and individuals are: free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular, that based on their indigenous origin or identity. Proclamation and Protection of Human Rights in 2003 submitted a written submission to the Human Rights Commission which mentioned the “…theft and patenting of indigenous Peoples’ bio-genetic resources facilitated by TRIPS…” is happening all over the world28 and must take steps to prevent it. As the above statement mentions Indigenous people no matter what nation they belong to, have a set of traditional knowledge that is passed down from generation to generation. It encompasses the use of seed treatments, storage, seeds, and harvesting tools, including technology. Also, the idea of Most of this knowledge is to stay in the public domain because it did not meet established criteria for protection, or the indigenous committee who created it does not endorse private ownership rules. Either way, it stays un-owned. This public knowledge about such as knowledge about Herbal plants, seeds, and harvesting tools, including technology is highly pirated by third parties to develop them into something technologically advanced and then patented according to TRIPS. With the patent, the Knowledge of Indigenous brought over a long period may fall into another hand and the benefit of the facilities is not entitled to the real owners of the knowledge.
Many Sri Lankan native Plants and Ayurvedic practices are patented Including ‘Solanum Virginianum’ is patented and owned by Japanese Pharmaceutical companies. In the case of Neem and Tumeric29, Indian lawyers argue against the US patent office claiming the ownership of the Tumeric plant and medical products made out of it. The court held that the traditional knowledge of Medicine and the plant of Turmeric is knowledge that belongs to India and can not be patent-owned by another country. Though it’s a victorious case the ability to neglect the Rights of others was facilitated by Intellectual property law. Hence it is clear that in certain situations Intellectual Property Law facilitates a bypass through Human Rights.
Industrial Design, Trademark Law, and Right to Expression
According to UDHR article 19, and article 10 of the European Convention on Human Rights the Right provisions “to Express” is world widely accepted as a Human Right. On the other hand, Industrial Design is any pattern that has a special appearance and has been designed using a three-dimensional form, with colors and lines or without, to serve as a symbol of the product of industry. In Intellectual Property Act 2003 Sri Lanka, under sections 28 to 35 describes an industrial design as “Any composition of lines or colors of any three-dimensional form…” This creates a ground to violate another's right to expression. How, according to the well-known case Nadia Plesner V Louis Vuitton30, where the Louis Vuitton filed a case against an artist claiming he used their industrial design of a handbag on the art related to a fundraising program in Africa. The artist was using a shape that contains colors and lines as any artist or draftsman would do to express her ideas. If an artist or any person has to express themselves with the fear of getting sued for his line and shapes similar to another one would infringe the Right to Express in the brought daylight.
A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others. Here also certain companies try to build an unfair monopoly over certain designs. In the case of Mc McDonald v Mc Curries, 31 Mc Donald's was suing a Sri Lankan Company MC Curry, which was using MC as its trademark for over four decades, for using MC. though the court dismissed the case with a victory for MC Curry still the power to go to court was given by the Intellectual Property law.
Conclusion
Intellectual Property Law and Human Rights are two distant features except for the fact that Intellectual Property Rights are Human Rights. Hence, there is a clear connection but the enforcing mechanism of intellectual property rights, the TRIPS agreement, and related Local legislations Based on TRIPS agreements tend to cross paths with Human Rights.
In the TRIPS agreement, such mechanisms as Compulsory Licenses are introduced to mitigate this overlapping. But still, since the differences occurred based on fundamental facts, they cross over each other. Since Intellectual property Rights are also Human Right itself, Human Rights can be considered superior. Hence, the legal enforcing mechanism of Intellectual Property rights Should not overrule Human Rights principles. As we witness through this assignment various rights Including the most fundamental right of the Right to Life also tend to be challenged by TRIPS and other enforcing mechanisms. Therefore in conclusion the given phrase of the question is,
“Intellectual property law protects and grants exclusive rights to new craters. However, such exclusive rights may infringe human rights of ordinary consumers of intellectual property” is true in reality. To mitigate these differences law-making authorities, have to move from less contradictory regulations that have the capability of letting the general public enjoy new inventions and same time benefit and motivate the inventor.
Bibliography
Legislations
Agreement on Trade Related Aspects of Intellectual Property Rights 1994 (TRIPS)
Berne Convention for the Protection of Literary and Artistic Works 1886
Intellectual Property Act No 36 of 2003 (IPA)
International Covenant on Economic, Social and Cultural Rights 1976
Patent Law Treaty 2000 (PLT)
United Nations Human Rights Declaration 1948
United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP)
Case Laws
Monsanto Co. v. Mc Farling, 363 F.3d 1336 (Fed. Cir. 2004)
University of Oxford v. Rameshwari Photocopy services and Others, CS/OS 2439/2012.
Wasantha Obesekara v A C Alles (2000) CA 730/92 (F)
Lalitha Sarathchandre V Upul Santha Sanasgala Sc FR 451/2011
Associated Newspaper of Ceylon V Amarasinghe SC.CHC (APP) No; 30/2003
R.P Limited v. Indian Express Newspaper, AIR 1989 SC 190.
Neem and Tumeric case
Nadia Plesner V Louis Vuitton-
Mc Donalds v Mc Curries
Other Sources
‘What is Intellectual Property?’,(World Intellectual property organization) What is Intellectual Property? (wipo.int) accessed 15 Aug 2022
Intellectual property law, ( Georgetown Law, 20 Jan 2020) Intellectual Property Law | Georgetown Law accessed 15 Aug 2022
Laurence R. Helfer, 'Human Rights and Intellectual Property: Conflict or Coexistence'(2003)
Bajpai S., 'Human Rights and Intellectual Property Rights: A Study of Relationship and Conflict' (2021)
Human Rights and Health, (World health Organization, 29 Dec 2017) Human rights and health (who.int) Accessed 15 Aug 2022
Resolution 2000/7, supra note 1. For a discussion of the Resolution's history, see David Weissbrodt & Kell Schoff, A Human Rights Approach to Intellectual Property Protection: The Genesis and Application of Sub- Commission Resolution 2000/7,
Right to Information History, (RIT) History (rti.gov.lk) accessed 18 Aug 2022
Promotion and Protection of Human Rights: Written Statements Submitted by International Indian Treaty Council, a Non-Governmental Organization in Special Consultative Status, U.N. ESCOR Comm'n on Human Rights, 59th Sess., Agenda Item 17, U.N. Doc. E/CN.4/2003/NGO/127 (2003):