The Intellectual Property Rights, as the name suggests, are the rights
given to an inventor or the creator as a reward
# For creating or inventing something new as a result of his own intellect
# To benefit the Society out of that invention.
The Human Rights are the rights which are given to the Human Beings, not
as a matter of chance or choice but as a matter of his being a human. They are
the rights ensuring the basic survival of the Human Beings.
Now, if we consider out the nature of Intellectual Property Rights with
reference to the Human Rights then we found that:
# Intellectual Property Rights are non-fundamental Human Rights,
# Open to State interference to fulfil Human Rights obligations.
Thus, after these definitions, we can easily progress forward in understanding
the conflicts between the two as well as the resolution of the conflicts between
the Human Rights and the Intellectual Property Rights.
The Human Rights and the Intellectual Property Rights are the two domains of Law
that have evolved independently. Intellectual Property Rights consist of
statutorily recognized Rights, providing incentives for the participation of the
private sector in various fields and seek to contribute to technological
development. On the other hand, Human Rights are the Basic Rights, which are
recognized by the State, and are inherent Rights linked to human dignity.
The Globalization of the Intellectual Property Rights triggered the debate on
the relationship between the Human Rights and the Intellectual Property Rights,
because many developing countries, particularly the least developed countries,
are not in a position to implement the TRIPS standards in their jurisdiction
without further compromising their development at the cost of Human Rights.
The indigenous communities state that the Government should
recognize their claim over their traditional knowledge matter, which is related
to the agriculture, biodiversity, etc. According to the Intellectual Property
Rights regime, the traditional knowledge is considered to be a part of the
public domain, since it does not meet the established criteria for protection or
private ownership. Since this traditional knowledge is ownerless, various
private enterprises utilize this knowledge for further inventions, and
thereafter protect their inventions by means of patents, copyrights, etc. and
the indigenous communities are deprived of their Lawful share.
Thus, the existing flaw in the Intellectual Property Rights regime leads to the
exploitation of the indigenous communities by various enterprises, which leads
to the violation of the Human Rights of the indigenous communities. In this
respect, Intellectual Property Rights Law infringes on the domain of Human
Rights Law. The Government should enact Legislations, where the indigenous
communities can seek damages for unauthorized usage of their traditional
knowledge. The Government can also protect the traditional knowledge by denying
patents, copyrights, etc. for the objects, which have been derived from the
The main justification which is given in support of Intellectual Property Rights
is stated to be that these incentives and rewards to inventors and the creators’
results in the benefits for the society.
The correlation between the Human Rights and the Intellectual Property is
intriguing, because it transcends different levels and aspects of each of the
Legal fields respectively. However, it seems as though that the relationship
between the two is primitively due to the fact that Intellectual Property Rights
imposed limitations on the accessibility and realisation of Human Rights by
broadening its scope of protection.
The Overlap of The Intellectual Property Rights And The Human Rights Law
Today Human Rights Law and Intellectual Property Law overlap to an extent far
greater than initially envisaged. The Intellectual Property has already found
its way into the Human Rights. The Right to Intellectual Property is inserted in
the Universal Declaration of Human Rights (UDHR)
and the United
Nations Declaration for the Right of Indigenous People (UNDRIP)
The UDHR is probably the most prominent International document to be said to
annotate the Human Rights regime, which effectively annotates the Intellectual
Property Rights on an International scale. Although not expressly mentioned,
Article 27 (2) UDHR states that ...everyone has the Right to the protection
of the moral and material interests resulting from any scientific, literary or
artistic production of which he is the author
UDHR (Universal Declaration of Human Rights) And The Intellectual Property
The UDHR Article 27.1, clearly states that everyone has the Right freely to
participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits
, and Article 27.2 of the
UDHR, states that everyone has the Right to the protection of the moral and
material interests resulting from any scientific, literary or artistic
production of which he is the author.
These two paragraphs of the same
provision of the UDHR illustrate the complex and sometimes ambiguous
relationship, which may give rise to contradictions, between the Intellectual
Property Rights and Human Rights.
Agreement on Trade Related Aspects of Intellectual Property Rights And The
Human Rights and Intellectual Property Laws are two distinct fields that have
largely evolved separately. The adoption of the Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS Agreement)
implications for developing countries have fundamentally changed the nature of
the debate concerning Intellectual Property Rights and Human Rights. Their
relationship needs to be re-examined for a number of reasons. This is
demonstrated in two ways:
Firstly, the impacts of Intellectual Property Rights on the realization of Human
Rights such as the Right to Health have become much more visible after the
adoption of the Trade Related Aspects of Intellectual Property (TRIPS)
Secondly, the increasing scope of Human Rights provisions in protecting
individual contributions to knowledge in the field of medical patents is due to
the rise in Intellectual Property Rights.
Intellectual Property Rights And Realization of Human Rights (Patent Rights
Vs. Right To Health And Right To Food)
Regarding the Human Right to Health
, the link between Intellectual
Property Rights and the Human Rights has become apparent in the relationship
between medical patents and the Right to Health, particularly in reference to
the HIV/AIDS epidemics. This is due to the fact that a number of drugs used to
alleviate HIV/AIDS are protected by patents. Hence, there is a direct link
between patents, the price of drugs, and access to drugs.
Regarding the Right to Food,
there are links between patents in the field
of genetic engineering, the limitation of farmers Rights, and access to food.
While the link between Intellectual Property Rights and Human Rights has been
made, it has been discussed almost exclusively in Human Rights forums. In other
words, there remains a visible imbalance insofar as the language of Human Rights
has not penetrated Intellectual Property Rights institutions, whereas the
language of Intellectual Property Rights is now regularly addressed in Human
International Convention on Economic, Cultural And Social Rights (ICESCR) And
Intellectual Property Rights
The Right to the enjoyment of the highest attainable standard of physical and
is specifically protected under the International Convention
on Economic, Cultural and Social Rights (ICESCR). Core obligations of member
States include the necessity to ensure the Right of access to health facilities,
especially for vulnerable or marginalized groups. In the case of primary health
care, this includes the provision of essential drugs. In the case of HIV/AIDS,
more clear elaborations of these obligations have been given.
The UN Human Rights Commission
adopted resolutions indicating that access
to medication in the context of HIV/AIDS is one fundamental element for
achieving the full realization of the Right to Health. In other words,
accessibility of medicines and their affordability are two main components of
the Right to Health. Medical Patents
have direct impacts on accessibility
They have the potential to promote access by providing incentives for the
development of new drugs and also to restrict the access because of the
comparatively higher prices of patented drugs. The fact that patented drugs are
repeatedly more expensive than generic drugs is a relevant consideration. Other
factors that influence access include situations where there is only limited
competition between generic producers, local taxes, and mark-ups for
wholesaling, distribution, and dispensing. Improving access can thus not be
limited to bringing prices down through competition but must also include
further measures such as public subsidies, or price control measures. Better
access to drugs can be approached from the point of view of medical patents or
the Right to Health.
The dichotomy is unavoidable insofar as each relevant legal framework is largely
insulated from the other, but both need to be considered jointly because, in
practice, a solution focusing on medical patents that ends up constituting a
denial of the Right to Health would not be acceptable.
Resolution of The Conflict
Thus, the very basic debate is that how a balance to be maintained between the
Intellectual Property Rights and the Human Rights because the smooth existence
of both is required for the appropriate and rich economic and the social
development of the society as a whole.
For resolving the conflict between Human Rights and Intellectual Property
Rights, the precise Rights which are being undermined should be identified. The
Human Rights Organizations should develop specific interpretations of the
ambiguous Rights (mainly economic, social and cultural rights) in order to
comply with the terms of the TRIPS Agreement. Secondly, if the TRIPS Agreement
is seen from the Human Rights perspective, then the consumers of Intellectual
Property products will be on an equal stage with the owners of Intellectual
Property Rights. The agreement regards the consumers of these products inferior
to the owners. But if the Human Rights purview is added to the agreement, then
the consumers will also be the holders of these internationally guaranteed
Rights. Thirdly, rather than advocating minimum standards for Intellectual
Property Rights protection, the Government should impose maximum standards for
Intellectual Property Rights protections.
This would act as a limit for the multiplying standards of Intellectual Property
Rights protection. It is also suggested for better protection of the Human
Rights if a minimum required standard of the protection of the Human Rights is
to be maintained while realizing any kind of Intellectual Property Rights.
Lastly, the international forums on Intellectual Property Rights, such as the
World Intellectual Property Organisation (WIPO)
, the World Trade
, etc., while making new Laws on Intellectual Property
Rights, should analyse the Laws with a Human Rights perspective. It is only in
such circumstances that the Human Rights Law and Intellectual Property Rights
Law will be able to co-exist with one another properly.
Written by: Navin Kumar Jaggi and Aashna Suri