IPRs and human rights

Ever since the US branded inadequate protection of intellectual property rights (IPRs) – patents, copyrights and trademarks – an unfair trade practice under Section 301 of the Trade Act 1974, effective enforcement of IPRs has come to occupy a central stage in international business and commercial relations.As a rule, present-day bilateral investment treaties (BITs) and free trade agreements (FTAs), particularly those to which the US or other developed nations are a party, contain a chapter on IPR protection. However, the real breakthrough in IPR protection was the conclusion of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) during the Uruguay Round of multilateral trade negotiations, which led to the birth of the World Trade Organisation (WTO) on January 1, 1995.The TRIPS agreement is certainly not the first multilateral discipline for IPR protection and enforcement. A multilateral IPR regime did exist before TRIPS; for example, the Paris Convention for the Protection of Industrial Property 1883 (patents, industrial designs, etc) and the Berne Convention for the Protection of Literary and Artistic Works (Copyrights) 1886. However, the IPR regime was weak in terms of enforcement, narrow in scope and coverage and had a limited number of members. With a view to strengthening and upgrading the IPR regime, the US government, pushed mainly by the pharmaceutical and entertainment industries, took the lead in incorporating rules on IPRs into the comprehensive multilateral trade discipline that today is known as the WTO.The TRIPS Agreement provides a more secure basis for IPR protection than previously. However, this also raises questions about the social implications of increased IPR protection, particularly the IPR-human rights relationship. While firms are entitled to reap the benefits of their huge investment in product development and up-gradation, are they also entitled to set monopoly prices or create shortage of essential products like pharmaceuticals in the name of IPR protection?Article 27 (2) of the Universal Declaration of Human Rights (1948) states that authors of literary, scientific and artistic works are entitled to the protection of their material (economic) and moral interests. This underlies the need for protecting IPRs as human rights. The TRIPS Agreement deals with the relationship of IPRs and human rights in two ways. On the one hand, it acknowledges that IPRs need to be protected against unauthorised use. On the other hand, the WTO law acknowledges that some other rights may be violated if the exercise of IPRs becomes untrammelled.Promotion of effective and adequate protection of IPRs is one of the basic objectives of the TRIPS Agreement, as outlined in its preamble. However, Article 7 of TRIPS, titled ‘Objectives’, states that the protection and enforcement of IPRs should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.This sums up how the WTO law deals with the IPRs-human rights relationship. IPRs have to be protected, but they are not inalienable rights, and are subject to certain conditions and limitations. While the creators of intellectual property are entitled to the protection of their work, this must in turn contribute to social and economic welfare and balance the rights of the creators of intellectual property – authors, inventors – with their obligations to society at large.The TRIPS Agreement establishes common rules and minimum standards for the protection of IPRs. Under Article 3, which is applicable to all categories of intellectual property covered by the agreement, governments have to give as much importance to the rights of foreign creators of intellectual property as they give to their own nationals relating not only to the substantive standards of protection but also to matters affecting the availability, acquisition, scope, maintenance and enforcement of IPRs. This is also called the national treatment principle.Essentially the WTO law confers two types of rights, with certain limitations, on the creators of intellectual property: One, to commercially exploit their work; two, to prevent others from doing so without their authorisation. Under copyright provisions of the TRIPS Agreement (Articles 9-14), authors have the right to reproduce, translate and adapt their works, and to prevent others from doing so without their authorisation.Article 11 provides that authors shall have in respect of at least computer programmes and cinematographic works the right to authorise or to prohibit the commercial rental to the public of originals or copies of their copyright works. Under trademark provisions (Articles 15-21), producers of both products and services are entitled to prevent others from using identical or similar marks that may cause confusion as to the origin of goods.This also protects the right of consumers, who may be misled by similar marks. Under patent provisions (Articles 29-34), inventions have to be protected against unauthorised use so that creators can reap the benefits of their mental labour and investment. Similarly, industrial designs (Articles 25-26), geographical indications (Articles 22-24), layout-designs of integrated circuits (Articles 35-38), and confidential business information including trade secrets (Article 39) have to be protected against unauthorised use.In line with its objectives and principles mentioned above, the TRIPS Agreement is cognizant of the fact that an unrestricted exercise of IPRs may endanger the rights of others. That is why the agreement contains a number of safeguards to avert such abuse. First, IPRs are conferred on authors or inventors for a particular period. For instance, copyrights have to be protected until 50 years after the death of the author. Industrial designs have to be protected for 10 years (Article 26.3). And patents have to be protected for 20 years (Article 33 of TRIPS Agreement).Second, the governments can interfere with the exercise of these rights. For instance, governments can refuse to issue a patent for an invention if its commercial exploitation is prohibited for reasons of public order, health or morality (Article 27.2). Governments can exclude diagnostic, therapeutic and surgical methods, plants and animals (other than micro-organisms), and biological processes for the production of plants or animals (other than microbiological processes) from the grant of patents. (Article 27.3).To prevent the abuse of patents, governments can, under certain conditions, issue ‘compulsory licences,’ allowing a competitor to produce the product or use the process under licence (Article 30-31). This provision can be useful in preventing the shortage of essential products, such as pharmaceuticals, in developing countries. Governments can also adopt appropriate measures to prevent or control abusive and anti-competitive practices in the licensing of IPRs (Article 40).Arguably, the most significant area in the IPR-human rights relationship is the government’s power to issue compulsory licence to prevent the shortage of essential products, such as pharmaceuticals.Another controversial area in the IPR-human rights relationship is the creation of monopolies. IPR protection gives monopoly power to firms, notably multinational enterprise (MNEs). As is always the case with monopolies, prices go up, and in most cases exorbitantly, which benefits producers or suppliers at the expense of consumers. This is particularly true in case of pharmaceuticals and agriculture, where the beneficiaries are the firms of rich nations but the consumers are predominantly from developing countries. Another problem with developing countries is the absence of a strong competition regime, which can serve as deterrence to IPR-induced monopolies. The result is that MNEs operating in developing countries are often in a position to sweep through the market.The conclusion is that though the TRIPS Agreement professedly seeks to balance the rights of IPR owners and those of society at large, in reality the latter are unmistakably overshadowed by the former. And it is the mega businesses that turn out to be the major beneficiaries. But this is not surprising because mega businesses were the real players in adding IPRs to the agenda of multilateralism during the Uruguay round.The writer is an Islamabad-based columnist.Email: hussainhzaidi@gmail.comTwitter: @hussainhzaidi

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