INDIA: INTELLECTUAL PROPERTY RIGHTS AS ‘HUMAN RIGHTS' AN ANALYSIS

 

HUMAN RIGHTS AND INTELLECTUAL PROPERTY RIGHTS

 

Introduction

 

There are two major approaches to the Human Rights – Intellectual Property Rights regime. The first approach reconciles the relationship between the two spheres as in conflict. This approach appears in the united Nations Human Rights system in the 2000 resolution which states that, “actual or potential conflicts exists between the implementation of TRIPS Agreement and realization of economic, social and cultural rights.” This framing sees strong intellectual property protection as undermining – and therefore as incompatible with – a broad spectrum of human rights obligations, especially in the area of economic, social, and cultural rights. The “conflict” view argues that IP rights are not fundamental human rights but instrumental legal tools to further social and economic purposes. However, the so-called conflict view might arguably be more accurately described as the “primacy of human rights” view on the grounds that the consistent articulation of this view across a number of official reports and comments from different UN organizations in the past decade does not strictly maintain that IP rights cannot co-exist with human rights, but rather that whatever balance is struck between private and public interests in IP, “the primary objective and obligation of States is to promote and protect human rights.”

 

The second approach to the intersection of human rights and intellectual property sees both areas of law as concerned with the same fundamental question: “Defining the appropriate scope of private monopoly power that gives authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public has adequate access to the fruits of their efforts”

 

In the United Nations framework, various instruments include statements from international instruments such as High Commissioner Report on TRIPS Agreement, which stated that “the balance between the public and private interests found under Article 15 of ICESR and Article 27 of UDHR – is one familiar to IPR”. This school views human rights law and intellectual property law as essentially compatible, although often disagreeing over where to strike the balance between incentives on the one hand and access on the other.

 

Intellectual Property Rights and Indian Constitution

 

The Constitution of India does not recognise Intellectual Property as a “Property” directly and the recognition of the same in the Constitution is very vague. The preamble of the Constitution recognises Economic Liberty which is one of the most important Liberty, and to ensure the same, the property system has been introduced. The term property includes both intangible and tangible property and thus definitely includes Intellectual Property. In the initial Constitution “Right to Property” was recognised under Article 19 (1) (f) as a fundamental right, but the same was repealed afterwards and was inserted under Article 300 A through 44th Amendment.

 

Article 300 A merely reads that “No person shall be deprived of his property save by authority of law.” Article 300 A also does not directly recognises Intellectual Property Rights. In respect of Intellectual Property Rights, Article 253 of the Indian Constitution plays a very important role and it mandates the recognition of the international aspect of laws, legislations, and agreements and empowers the Indian parliament to enforce the international treaties through law making process. It is because of this Article various international instruments in the intellectual property rights have been recognised in Indian laws. Further, the mention of Intellectual Property system in the List I of 7th Schedule of the Indian Constitution further provide us with clues that Intellectual Property is indeed recognized by the Indian Constitution. Entry 12, 13, 14 has been rightly included in the List 1 of the 7th Schedule of the Indian Constitution and it talks about United Nations Organization, participation in the international conference and conventions and also to enter into agreements with foreign countries. Entry 49 of List happens to be the specific one which has been totally and exclusively devoted to intellectual property system. Entry 49 recognizes only patents designs, copyright, trademarks and others. Hence the Indian Constitution does not directly recognises the Intellectual Property Rights but indirectly recognises it, unlike US Constitution which directly recognises under in Article 1, Section 8 , Clause 8 and states that, “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”

 

Intellectual Property Right and Right to Education

 

The right to education has been widely recognised under various international instruments such as UDHR, ICESR, CEDAW etc. Article 26 of United Declaration of Human Rights was the first of these instruments to announce a human right to education. Further the UNESCO Convention against the discrimination in Education was also adopted in 1960, also eliminates all form of discrimination in education. Article 13 and 14 of International Covenant of Economic, Social and Cultural Rights also contain human right to education. Human Rights Law includes numerous references to the provision of adequate textbooks and learning materials as a component of right to education as a human right. UNESCO in its report called “A Human Rights approach to Education for all” in 2007 described the “provision of schools, teachers, books and equipment” as a “fundamental prerequisite of education.”

 

Copyright protection has always been extended to educational materials. Since its beginning, copyright law has been premised on the idea that the flourishing of private markets in copyright protected works will promote learning. In contrast, the human right to education imposes public law obligations on governments, including the provision of free educational materials. This may require reconsideration on relationship between right to education and Intellectual Property Rights. The copyright law infringes or impedes the provision of learning materials in a manner that it is inconsistent with the International Human Rights obligations. It is contended by the promoters of the Intellectual Property Rights that the copyright creates private property rights in particular expressions, but ideas are left in the public domain for others to use. Copyright does not impede governments or private actors from starting their own textbooks in any area of school curriculum.

 

Medical Patents and Right to Health

 

In recent years, one of the most controversial debates has focused on the impacts of medical patents on the realization of the human right to health in developing countries. Article 12 of ICESR20 states the protection of right to “enjoyment of the highest attainable standard of physical and mental health” It includes the provision of essential drugs in primary healthcare.

 

Accessibility of medicines and their affordability are two central components of the right to health. Medical patents have direct impacts on accessibility and affordability. They have the potential to improve access by providing incentives for the development of new drugs as well as to restrict access because of the comparatively higher prices of patented drugs. In practice, access to drugs is governed by a number of factors. Their price is one important factor. Therefore, the fact that patented drugs are nearly always 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. Fostering better access to drugs can be approached from the point of view of medical patents or the right to health. The central issue is that the realization of human rights must be judged according to the level of implementation among the most disadvantaged. The issue is not, therefore, whether certain countries can afford patent rights, but whether the poorest in any given country stand to benefit from the introduction of medical patents.

 

Conclusion

 

Traditionally, intellectual property regimes sought to balance the rights of creators with the interests of the public to have access to artistic works and the very existence of intellectual property rights was originally justified on the grounds that incentives and rewards to artists and inventors result in benefits to society. However, current developments tend to weaken these balances and to skew the system in favour of a much narrower range of interests. Commercialization has changed intellectual property from a means to provide incentives to researchers and inventors to a mechanism intended to encourage investment and protect the resources of investors. The privatization of the public domain reflects this transformation. Preserving the public domain is important because it serves as a resource for future creators and as raw material for the market place of ideas.

 

Human rights and Intellectual Property rights, especially patent right regime, are two branches of law that have overcome their initial shyness of each other and are now becoming increasingly intertwined by the day. These two disciplines have developed in virtual isolation from each other for several decades. However, during the past few years, there have been a plethora of international standard setting activities, which have begun to explore the common objectives of patent law on the one hand and human rights law on the other. IPRs have now spread throughout the world by virtue of an intrinsic network of bilateral, regional and multilateral treaties as already discussed in this work. Extensive use of such rights has resulted in varying impacts on human rights. An integral component of intellectual property, patents assumed the global importance only during the 20th century. The IPRs consist of the whole array of contrasting rights. Many of them are statutory and they are protected for varying periods. Human rights, on the other hand, mean those basic rights and freedoms to which all humans are entitled, like the right to life and liberty, freedom of thought and expression, and equality before the law, those basic standards without which people cannot live in dignity.

 

Although the debates within the WTO and WIPO will surely be contentious, trade and intellectual property negotiators should embrace rather than resist opening up these organizations to human rights influence. Allowing greater opportunities for airing a human rights perspective on intellectual property issues will strengthen the legitimacy of these organizations and promote the integration of an increasingly dense thicket of legal rules governing the same broad subject matter. Such integration will also allow national and international lawmakers and NGOs to turn to the more pressing task of defining the human rights-intellectual property interface with coherent, consistent, and balanced legal norms that enhance both individual rights and global economic welfare