Introduction to Human Rights | Lesson 31: “Intellectual Property and Human Rights”

Introduction to Human Rights | Lesson 31: “Intellectual Property and Human Rights”


Although not always enshrined in international
documents – due to Cold War grievances – property rights are a kind of human rights. However,
there are two subcategories of property rights. First, there are property rights which are
more proximate to the individual and his or her most basic needs, such as the rights over
food, clothing and housing. Second, there are those property rights held over the means of production, necessary to develop any economic endeavor. Intellectual property rights, as
an input for an economic activity, whether industrial or artistic, can be said to belong
to the second category of property rights. Property rights can be held not only over
physical objects, but also over creations of the mind. Intellectual property is a two-fold
system that comprises “copyright law”, that is, the law that protects artistic and
literary creations; and “industrial property”, that is, the law that protects, through trademarks
and patents, those creations with immediate productive or economic application. Intellectual property is a relatively new branch of domestic and of international law.
It is said that the lack of such a body of norms made the genius inventor Leonardo Da
Vinci to ill-design on purpose his artifacts, and to include reverse scripture in his sketches,
as mechanisms to protect his creations from being copied without his consent. It was only during the second half of the 19th century that the first international
agreements on intellectual property were signed: First, the Paris Convention for the Protection
of Industrial Property, in 1883; and second, the Bern Convention for the Protection of
Literary and Artistic Works, in 1886. In 1967, the United Nations created an agency
in charge of dealing with intellectual property issues in international law, called the World
Intellectual Property Organization or WIPO. WIPO is a permanent forum for the discussion
of intellectual property policy. WIPO also cooperates with each State to fulfill intellectual property rules and to promote their economic development. Besides the Paris and Bern Conventions of the 19th century, some of the most important
international treaties on intellectual property are: the Rome Convention for the Protection of Performers, of 1961; the Trademark Law Treaty, of 1994; the World Trade Organization
Agreement on Trade-related Aspects of Intellectual Property Rights, of 1994; the WIPO Copyright
Treaty, of 1996; and the Patent Law Treaty of 2000. Article 27 of the Universal Declaration of Human Rights sets forth the following rule:
“(1) 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.
(2) 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”.
This article protects both the free access to knowledge as a public good, and the rights
of the author of knowledge to benefit from his creation. This double protection reflects
the inherent tension in intellectual property law between the interests of the community
and those of the individual author. Indeed, in the law protection for the author is sometimes called “copyright”, and sometimes referred to as “author rights”, depending on the
importance assigned to the right of the community to copy the creation or the right of the author
to reserve it just for him or her. Another human rights international document,
the International Covenant on Economic, Social and Cultural Rights, sets forth in its article
15 the right: “1. (…) (a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications; and
(c) To benefit from the protection of the moral and material interests resulting from
any scientific, literary or artistic production of which he is the author”.
It is said that these rights can be divided into three categories: (i) First, the right
to access to scientific and technological developments; (ii) Second, the right to participate in the decision regarding scientific and technological developments; and (iii) Third, the right to
be protected from possible harmful effects of scientific and technological development. On the other hand, under the just cited article 15 States have the following obligations:
(i) First, to preserve, develop and spread scientific knowledge; (ii) Second, to respect
free scientific research; and (iii) Thirdly, to recognize the benefits derived from scientific
international cooperation. It is usually said that the law follows the
lead of society, meaning that changes in society often happen faster than what the law can
account for. This is particularly the case when intellectual property law tries to keep
up with technological changes. Thus, centuries passed since Leonardo had to protect his creations
from being copied before the first industrial property international treaty was signed,
in 1883. The same happens with the internet. Downloadable media and online streaming have
put in jeopardy the interests of artists and studios, so there are progressively more prohibitions
for these activities around the world, such as the “Stop Online Piracy Act” initiative
in the United States. According to a list produced by the World
Health Organization, there are more than 300 “Vital, Essential and Necessary” drugs
for the human body. Such drugs are produced by laboratories owned by pharmaceutical companies,
who are the suppliers for an ever growing demand of their products. Industrial property
protects the interests of these companies. Now, applying this market rationale for such
a sensitive issue like human health can be morally problematic. On the other hand, laboratories
would simply stop researching and synthesizing drugs if they lacked the economic incentives
granted to them by the industrial property regime. Traditional knowledge is the intellectual and intangible cultural heritage of ancestral, indigenous and local communities. Since the end of the 20th century, there is a growing
interest in traditional knowledge, by corporations acting in the biotechnological, pharmaceutical,
medical and agricultural markets. They use intellectual property to patent and register that knowledge, which has been labeled as “neocolonialism”. However, intellectual
property law can also protect traditional communities, by assigning exclusive rights
to them over that knowledge. The decision is political. Please, don’t forget to visit www.moocchile.com, and watch our next class.

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