Open Access Research Article
IPR AND HUMAN RIGHTS IN RECENT TRENDS IN INDIA: CONFLICT OR COEXISTENCE
Published Paper
Article Details
Abstract
The Human Rights
and Intellectual Property laws are developing together at a universal level,
therefore various challenges required to be addressed and there is a necessity
for describing extent of human rights provisions safeguarding individual
assistances to the knowledge. This
study seeks to examine relationship between the Human rights and Intellectual
property rights. It also tries to analyze the coexistence of both the laws in
the various International Human Rights Instruments. It further will seek to
discuss the prospective trajectories between Human Rights and Intellectual
Property Rights. This paper will look into the following research question: How
are the Intellectual Property Rights inter-related to Human Rights Laws? What
are the consequences of intersection of these two branches of law? To what
extent Intellectual Property Rights and Human Rights Laws overlap in India?
And, what is the future of Human Rights Laws in the TRIPS Era? Through this
academic venture the authors attempt to analyzes different issues rising
concerning the immediate and circuitous associations between Human Rights and
IPR, and likewise the broader question of the plausible prospective part of
learning related human rights aspects.
Keywords: Human Rights,
Intellectual Property Rights, International Human Rights Instruments, TRIPS.
INTRODUCTION
Intellectual
property and human rights are two dimensions of the law that once were
strangers, but now they are becoming increasingly intimate. For decades, the
two themes have evolved in virtual isolation from one another. In recent years,
however, international norm-setting activities have begun to map the previously
unexplored interferences between intellectual property laws on the one hand and
human rights laws on the other. From a perspective, intellectual property
rights require visible legal rights, which provide incentives for the
contribution of the private sector in certain regions, and we hope to add to
the innovative progress. Intellectual property rights, for example, licenses or
rights under intellectual property rights are close restriction rights. This
impressive business model is presented by society as an expression of certain
concessions, for example, disclosure of information and restriction of
restriction of permitted rights. When we talk about the human rights
perspective, the fundamental rights that the state sees are still linked to
human pride.[3]
The
way in which this new relationship evolves is that which is taught - and
sometimes even disputed - by States and non-governmental organizations in
international settings such as the United Nations Commission on Human Rights
and the World Intellectual Property Organization (WIPO) and, the World Health
Organization (WHO), the Sub-Commission on the Promotion and Protection of Human
Rights, the World Trade Organization (WTO) and the Conference of the Parties to
the Convention on Biological Diversity (CBD). The review of the laws in these
forums reveals two separate methodologies to the HR-IPR interface. These two
methodologies depend on radically unlike normative rules providing a different
description of how the rights and obligations of national and private
gatherings are organized. The primary approach reflects human rights and
intellectual property as an ultimate conflict. This context considers strong
intellectual property protection to undermine - and accordingly not to
encounter with - an extensive variety of human rights commitments, especially
in the area of ??economic, social and cultural rights. The approach pushed by
defenders of this way to deal with settling this contention is to perceive the
standardizing need of human rights law over Intellectual Property law in areas
where particular bargain commitments are in struggle.[4]
The
second way to deal with the crossing point of human rights and Intellectual
Property sees two legitimate zones that are worried about a similar key
inquiry: deciding the appropriate scope of private domination power which
provides authors and innovators adequate incentive for creativity and
innovation, while guaranteeing that the public consumer has sufficient access
to the products of their endeavors. This school thinks human rights law and
intellectual property law to be characteristically good albeit regularly unique
about where to adjust the impetuses from one viewpoint and access to the next.
Before investigating further, the ramifications of these two methodologies in
mapping the IPR interface, it is helpful to first turn back so as to perceive
how these two territories of global law are disconnected from each other and
disintegrate that separation.[5]
It is cagey that intellectual property and human
rights have long been unfamiliar. The Universal Declaration of Human Rights,
1948 safeguards the moral and substantial interests of authors in their
"scientific, literary or artistic production as part of their fundamental
freedoms". In the mid-1960s, an analogous provision was encompassed in the
International Covenant on Economic, Social and Cultural Rights (ICESCR), which
has so far been ratified by some 150 countries. However, intellectual property
has been stagnant for many years in Pantheon with a well-established human
rights standard neglected by contracting authorities, experts and commentators,
while other rights stem from ideological shadows.[6]
Human rights laws have no meaning in the intellectual
property of the intellectual property system. In major intellectual property
treaties, such as the Paris and Berne Conventions or the recently adopted TRIPS
Conventions, there are no references to human rights. These treaties relate to
the protection afforded by authors and inventors of "rights", but the
rationale for these agreements is not the immoral allegations of irrefutable
freedoms, but the economic and effective benefits that arise from the
protection of intellectual property products across national borders. During
the decades after the IInd world War, the most pressing apprehension of the
human rights community was to develop and codify legal norms and the strengthen
supervisory mechanisms. This development led to a virtual separation of human
rights into categories, extending from a basic set of authoritative standards
to the most serious forms of misconduct by the state, civil and political
rights as well as economic, social and cultural rights. Among these categories,
economic, social and cultural rights are less developed and less obligatory,
since they have received noteworthy jurisprudential consideration only in the
last decade.
For advocates of IP protection, by contrast, the
crucial concentration of international law was dual: first, the advanced
expansion of issues and rights through periodic reviews of Paris, Berne and
other conventions; and, thereafter, a relationship between trade and
intellectual property. A bit of the human rights law was added to these two
companies. It didn’t deliver an essential and adequate explanation for the
monopolies of intellectual property granted by the State. It was, in contrast,
a possible study of the expansion of law of Intellectual Property.
The Human Rights Community was the first intellectual
to have intellectual property law. Two incidents caused the intellectual
property involved in the agenda of human rights laws. First of all, residents
of the country have legal rights. The second TRIPS agreement is the result of
intellectual property and trade connections. These incidents showed a serious regulatory
error in the legal rights of human rights. In addition, new legislative
responses and initiatives have created an increasing tension between conflict
and mutual style to explain the interface between human rights and intellectual
property.[7]
THE RIGHTS OF
INDIGENOUS PEOPLES AND TRADITIONAL KNOWLEDGE
UN Human rights wing began giving attention to the
rights of the indigenous people in the 1990s. Recognition of the culture which
includes the traditional knowledge of these communities is among the various
claims that have been made by the indigenous people. Most of the traditional
knowledge has been treated as knowledge in public domain under intellectual
property laws as these communities do not claim private ownership over this
knowledge. This has resulted in the exploitation of this knowledge by the
outsiders without giving any compensation or recognition to these communities.
This knowledge has been developed by private firms and later have got IP
protection. The financial benefits arising out of this knowledge are not shared
with these communities.
A working group and a special rapporteur was
commissioned by the U.N. bodies in order to draft a Draft Declaration on the
Rights of Indigenous Peoples, and Principles and Guidelines for the Protection
of the Heritage of Indigenous People. These documents yearn for the states to
use legal mechanism in order to protect the traditional knowledge under the
existing legal framework of intellectual property. However, protectable subject
matter has been defined more broadly than in the existing laws. They also urge
states to not give intellectual property rights over “any element of indigenous
people heritage” which does not provide for sharing of profits with the
indigenous people. Therefore, from a human rights perspective intellectual
property rights are a big concern for the protection of indigenous communities.
THE TRIPS
AGREEMENT AND HUMAN RIGHTS
The TRIPS Agreement which was adopted in 1994 mandated
the WTO members to give very high minimum standards for protection. Earlier
intellectual property protection was non-existent in the developing and
under-developed countries. The obligations under TRIPs are enforceable which
means that in case of non-compliance, dispute can be brought before WTO’s
dispute settlement system.
TRIPS was brought to the attention of the U.N. human
rights system in 2000, the time which by which the developing nations had to
transform their legal system. Resolution 2000/7 on Intellectual Property Rights
and Human Rights was adopted by the Sub-Commission on the Promotion and
Protection of Human Rights. This resolution has an antagonistic attitude
towards TRIPS. It pointed out that TRIPS implementation conflicts with the
economic, social and cultural rights. The primary areas of conflicts relate to
the technology transfer to the developing countries, patents granted to
genetically modified organisms and results of right to food on farmers’ rights,
bio-piracy, right to health and access to medicines and the protection of
rights of indigenous communities.[8]
In order to resolve these conflicts, the
Sub-Commission called for review of the intellectual property concerns within
the United Nations, with the core principle that the priority should be given
to human rights over economic matters. The United Nations has given a lot of
attention to the issues of human rights and intellectual property. Some of the
notable actions are:
Three resolutions of the Commission on Human Rights on
Access to Medication in the Context of Pandemics such as HIV/AIDS, a scrutiny
of TRIPS and public health by the High Commissioner for Human Rights an
official statement by the Committee on Economic, Social and Cultural Rights
that intellectual property regimes must be consistent with the rights in the
Covenant; and a report by the Special
Rapporteurs on Globalization, which claims that intellectual property
protection has not given due consideration to human rights.
These documents have severely criticized TRIPS for
undermining the human rights. They also identified certain areas where both
regimes share common goals and hence call for harmonious reconciliation of
TRIPS and human rights specially relating to protection the traditional
knowledge and rights of the indigenous people.[9]
The
Intellectual property rights have picked up an exceptionally critical place
following implementation of TRIPS Agreement. The major challenge is looked by
developing nations such as India which need to roll out changes in the regional
laws. The entanglements on human rights are intense with regard to the
safeguard of Intellectual property.
In
2005, the Patents Amendment Act came into existence keeping in mind the end
goal to meet its commitments of International law. Prior to the change, generic
medicines were permitted to be fabricated in the country which has
comprehensive results on the Indian market. Because of patents the cost of
drugs is increased sharply. It isn’t only the pharmaceutical that variance
human rights but the administration concerning traditional knowledge and
technology transfer also variance human rights.
From
quite a while, traditional communities have been utilizing traditional
knowledge for the making of drugs. It has been pretty common that various
medical giants use their information with no payment of eminence. Furthermore,
the safeguarding of traditional knowledge is a huge challenge in the developing
countries. The purpose behind TRIPS i.e., transfer of technology in ensuring
development in developing as well as under- developed nations is many times
contradicted by MNCs.
INDIAN PATENT
AMENDMENT ACT (2005) AND ACCESS TO MEDICINES
In
the Paschim Banga case[10],
the Hon’ble Supreme Court gave instructions to the government to provide
essential medicinal conveniences. The government has essential obligation to
give reasonable meds and medications, hospitals outfitted with present day
technology and other such facilities. Access to medicine is secured by law in
light of the International human rights Commitments that is a result of
judicial activism.
The
Patent Amendment Act of 2005 will undoubtedly affect access to drugs mainly to
deprived people, who can't bear the cost of such pharmaceuticals. Product
patent has been stretched out to all areas and presently the protection term
for patent is 20 years. The alternative of reverse engineering has been stopped
and therefore affected the medical industry. If access to medicines isn’t
guaranteed, then that would be infringement of right to life enshrined under
Art. 21 of Constitution of India. The courts require assuming a proactive part
to ensure that IPR laws are not in disparagement of essential human rights and
business significance should provide path regarding human rights.
TRIPS AND
TRADITIONAL KNOWLEDGE
The
knowledge that traditional groups have in different parts of the world is
traditional knowledge. It goes from one age and then to the next segment mostly
orally and is owned by humans, communities or groups. In the last two decades,
this information has been widely abused by major corporations. Large companies
find this info and become elements that use innovation for commercial purposes.
Developing countries have recognized the effects of these abuses and have
expressed their concern at different world levels in the WTO. Later, many
traditional groups are rejected for the various monetary benefits that
companies derive from the benefit of learning. In addition, these groups have
denied their right to use their own vision, since multinational companies have
patents to use. Traditional knowledge is part of the economic and social
economic rights of a person or a group of people. The ICESCR sees the rights of
groups to guarantee their culture and traditions. In accordance with India's
new amendment law and its marginal provisions, large companies can register
that traditional knowledge within the reach of India's vast biodiversity. In
this way, it is essential that India start taking new measures to protect its
own information for its own benefit.
CASE STUDIES:
·
TURMERIC:
The turmeric plant was found in the roots of Curcuma Lunga that grows mainly in
Pakistan and India. In the Indian and Chinese Systems, it is used for the
purpose of medicines. The United States has granted a patent to American Indian
scientists, Drs Hari Har and Suman Cohly, to use turmeric to heal wounds. CSIR
confronted this patent on the basis of novelty, citing the skill of traditional
knowledge. Although this argument did not work, CSIR created written documents
and applied them to ancient texts available in Sanskrit and the 1953 edition
published in the Journal of the IMA. In the year 1998, the United States
revoked patent claims. He decided that this use was not a new
"invention", but an ancient Indian tradition. Even after this
cancellation, a newspaper in the United Kingdom reported that at a cost of
approximately US $ 150 million, 5,000 patents were granted to traditional
systems and medicinal plants violating clearly traditional knowledge of
traditional societies of India.
·
NEEM:
Neem
is also used for numerous medical purposes in India. Its excerpts are used to
treat many infections such as ulcers, skin disorders, leprosy, diabetes and oil
extracted as a means of contraception. United States granting a patent to W.R.
Nima for operations and products extracts of Neem. The Research Foundation for
Science, Technology and Environment challenged these patents on the ground of
modernity and returned to the traditional knowledge of India. Subsequently,
these patents were canceled in Europe and the United States.
COPYRIGHT
VIS-À-VIS HUMAN RIGHTS
The
copyright law protects individual creations in original works of art and
literature. Copyright protection begins when you produce the work and you do
not need any registration. Copyright law is generally limited to books,
paintings, movies or music, but copyright protection is now involved in new
dimensions and is now being extended even in computer programs and data sets.
Art. 9 to 13 of the TRIPS Agreement supports the "minimum standards"
for the protection of copyright. In India, copyright is recognized, permitted
and authorized by the Indian Copyright Act, 1957. There is no uniform copyright
law in the current scenario as the law does not need to be registered as a
prerequisite to claim the defense in accordance to the law. Everyone has the
right to protect the moral and material interests that arise from any
scientific, artistic or literary creation of the author. In this line, at the
basic level of human rights laws, a balance is expected between the interests
of the community and the individual in the serious abandonment of fair use.
After the period of protection under the legislation, copyright works have
progressed to the public sphere where exploitation opportunities are
increasing. In this way, moral rights aim to guarantee the rights of authors
after any financial reward, especially the right to integrity and attribution.
These rights allow the author to recognize and recognize his efforts and ensure
that the work is not altered or damaged.
The
Supreme Court of India in Bihar v. India Shailabala Devi[11]
argued that article 13 (b) of the Copyright Law of 1957 protects films,
cinematography and audio recording on copyright, and in this way, these rights
are treated as a fundamental right of the citizen. Therefore, it is said that
copyright does not limit the right of expression and expression within the
framework of art. 19 of the Constitution, and therefore it can be said that it
is the right to expression and expression. Therefore, obtain a human rights
situation.
The
disagreement between supporters of a conflict approach and those contending a
coexistence approach to the convergence of human rights and intellectual
property is probably not going to be settled at any point in the near future.
In actuality, the ongoing tension between these two contending issues is
probably going to have no less than four particular results for the
international legal framework.
The
principal impact will be an expanded motivating force to evolve soft law human
rights standards. For those favouring the supremacy of human rights over
intellectual property protection norms, it is basic to distinguish decisively
which rights are being undermined. Taking a look at the text of international
treaties, there seem, by all accounts, to be few obvious clashes, under the
customary international law. However, the text of treaties alone does not
recount the entire story. Human rights law is prominently flexible, and
contains an assortment of systems to evolve more definite legal standards and
norms over time. Proponents of the conflictual approach to intellectual
property are probably going to pressure human rights bodies to create
particular interpretations of uncertain rights to contend against the
accurately defined rule under TRIPS. This may also have the effect to
accelerate the jurisprudential transformation of ESCR (economic, social and
cultural rights) which is still a rudimentary area of human rights law.
A
second fundamental change that may arise is the treatment of customers of
intellectual property products as the bearers of rights assured
internationally. In the realm of TRIPS the makers and proprietors of
intellectual property products are the main “rights” holders. Consumers of
those products, whether individuals or groups, are given an inferior status of
users. These users are granted the same status as producers and owners under
the human rights approach to intellectual property. This phonetic reframing
isn’t just an issue of semantics. It additionally shapes States’ strategies of
negotiation. By conjuring standards that have gotten the imprimatur of
intergovernmental associations in which various states are members, governments
would more be able to solidly contend that a rebalancing of intellectual
property measures is a sensible attempt to blend two contending systems of
universally recognized “rights”, rather than a self-intrigued endeavor to
misshape trade rules or to free ride on foreign creators.
This
prompts a third result of the new crossing point between human rights and
intellectual property, i.e. the expression of “maximum standards” of protection
of intellectual property. From the Berne Convention to Paris Convention and to
TRIPS, all treaties have recognized the “minimum standards”. These instruments
do not prevent the governments from framing more rigid national legislations
relating to intellectual property, or from entering into agreements which
recognize such standards. After the TRIPS came into force, the United States
and EC have entered into bilateral agreements called “TRIPS plus” with many
developing countries. These bilateral treaties set out greater standards of
protection than that enshrined under TRIPS. However, the World Health
Organization (WHO) and the UN High Commissioner for Human Rights have objected
to these bilateral treaties on grounds of human rights.
The
final issue determines the question whether these maximum standards will indeed
actualize. The issue concerns how the human rights norms are accepted in the
international organizations responsible for making laws related to intellectual
property, such as WIPO and WTO. The WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC) was created in the year 2000 for discussion on the intellectual property
issues. In the first five sessions of the IGC held between 2000 and 2003, the
Committee analyzed a number of issues which were excluded from TRIPS and it
also focused on the demands of indigenous people. Most as of late, the WIPO
General Assembly broadened the Committee's command, approving it to quicken its
work, which may incorporate the improvement of new international instruments.
The High Commissioner for Human Rights, the WHO, and various NGOs have been
allowed the status of observer to partake in the Committee's talks, making
chances to raise human rights issues in the forum.
It
is very uncertain in global business organizations to integrate human rights.
The Declaration relating to TRIPS Agreement as well as Public Health
implemented in November 2001 clearly shows the human rights backing in the area
of access to medicines. In the meantime, the Doha Ministerial Declaration give
directions to the TRIPS Council to scrutinize "the relationship between
[TRIPS] and the Convention on Biological Diversity, the protection of
traditional knowledge and folklore, and other relevant new developments raised
by Members." Nevertheless, the USA has until now obstructed the Convention
on Biological Diversity Secretariat's application as a bystander status in the
Council, creating unclear the doom of a related submission by the Human Rights
High Commissioner. More importantly, in September 2003,
the failure of trade negotiations at the Cancún (Mexico),
World Trade Organization ministerial meeting suggests that the development of
new divisions between developed and developing countries can be achieved by
making Human rights inspired.
CONCLUSION
IPR
instruments in no way purposely tended to gaze at the impact on the recognition
of the human rights. But, response of TRIPS Agreement as well as its vibrant
execution in making countries has been connected with guaranteed specific
difficulties.
The
IPR agreements lack behind from Human rights treaties in giving a correlation
involving science, advancement, and the human rights since instruments like
ICESCR integrate specific arrangements around there. Art. 15(1) of ICESCR fuses
a clear perspective relating to rights and obligations of each individual as to
enhancement and pleasure in sound and mechanical progression. One of its
central duties is to provide a framework to limiting rights to profit by
science besides mechanical progression, and the benefits of individual
supporters of data formation with no surrounding debate within an IPR
situation.
Two
rule difficulties ought to be had a tendency to in coming quite a while at the
national and global levels. In the first place, the indisputably apparent
impacts of particular sorts of IPR on the recognition of human rights ought to
be had a tendency to by ensuring that measures are taken to guarantee everyone
who is presumably going to be antagonistically affected by strengthened IPR
models. Secondly, the broader analysis of the position of science and
originality in the structure of human rights ought to be in addition
calculated. This gives an assertion to keeping an eye on the point of assurance
of all commitments to knowledge, something which the existing IPR framework is
endeavoring to achieve. Traditional learning which has acquired the inevitably
crucial place in law and understanding banters in cultivation, natural, in
addition to IPR fields ought to likewise be tended to from a human rights point
of view with regards to Art. 15(1) of the ICESCR. To date, most verbal
confrontations have focused on the position of intellectual property rights
within the framework of human rights, as well as on the effects of intellectual
property rights on human rights. From the point of view of the importance of
science and innovation in this century, it is essential to overcome the
intellectual property rights in force with the attention of peoples from the
point of view of human rights. This is due to the way the art. 15 (1) (c) does
not imply intellectual property rights and the way in which the human rights
perspective can only be restricted to specific types of scientific obligations.
The
human rights perspective on traditional information cannot really be far from
the point of view of the traditional knowledge holders' viewpoint and the
promotion of free information. All the things that are considered gradually by
Article 15 (1) are a reasonable reason to maintain a strategic distance from
Bio Piracy and to provide positive protection to those who agree on the IPR
screen.
·
“Human Rights and Intellectual Property:
Conflict or Coexistence?” by Laurence R. Helfer, Minnesota
Intellectual Property Review, Vol. 5, Issue 1: 2003
·
“Human Rights and Intellectual Property
Rights in the TRIPS Era” by Philippe
Cullet, Human Rights Quarterly, Vol. 29, The John Hopkins University Press:
2007
·
“Intellectual property rights vs. Human
rights: a need to re-examine the relationship between two to enhance social
being” by Gargi Rajvanshi, Rajeev Gupta
·
“Interrelationship between IPR and Human
Rights” by Debadyuti Banerjee,
Student Journal of Law
·
https://blog.ipleaders.in/interrelationship-human-rights-intellectual-property-rights/
[1].
Assistant Professor (Law) AMU Centre Jangipur,
Murshidabad. W.B. Mob. 8001895721, masood351@gmail.com
[2]. Assistant
Professor, Department of Law, Monad
university, Hapur, UP-245304,Mob.-8923976888, rahulrahul849@gmail.com
[3]. “Human
Rights and Intellectual Property Rights in the TRIPS Era” by Philippe Cullet, Human Rights Quarterly,
Vol. 29, The John Hopkins University Press: 2007
[4]. “Human
Rights and Intellectual Property: Conflict or Coexistence?” by Laurence
R. Helfer, Minnesota Intellectual Property Review, Vol. 5, Issue 1: 2003
[5].
id
[6]. Available
at https://blog.ipleaders.in/interrelationship-human-rights-intellectual-property-rights/ (Access on 01/01/2021, 12:00 a.m.)
[7]. “Intellectual
property rights vs. Human rights: a need to re-examine the relationship between
two to enhance social being” by Gargi rajvanshi, rajeev gupta
[8]. “Interrelationship
between IPR and Human Rights” by Debadyuti
Banerjee, Student Journal of Law
[9]. “Human
Rights and Intellectual Property: Conflict or Coexistence?” by Laurence
R. Helfer, Minnesota Intellectual Property Review, Vol. 5, Issue 1: 2003
[10]. Paschim
Banga Khet Mazdoor Samity and Ors., vs. State of West Bengal, 1996(4) SCC 37
[11]. 1952
SCR 654
Article Information
IPR AND HUMAN RIGHTS IN RECENT TRENDS IN INDIA: CONFLICT OR COEXISTENCE
Authors: DR. MASOOD AHMAD, DR. RAHUL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/15
- Issue 7
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International Journal for Legal Research and Analysis
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