You are on page 1of 10

ACKNOWLEDGMENT

I take this opportunity to thank everyone who has played a part in completion of
this project. I am grateful to my teacher for assigning me this task and guiding me
all through. It was indeed a great experience which added to my knowledge and
information.
I thank my peers who helped me in this work. I am grateful to the authors whose
works I have referred to.
REGARDS
SUKHMANDEEP KAUR GILL
CONTENTS

Abstract………………………………………………………………………………………5
I. Introduction………………………………………………………………………………..6
II. Isolation of IPR and Human Rights in History: An Analysis…………………………….6
III. IPR and Human Rights: Various Approaches……………………………………………7
IV. Two Human Rights Approaches to Intellectual Property Rights…………………………8
 Rights of Indigenous people and Traditional knowledge …………………………….9
 Indian Context ………………………………………………………………..10
 TRIPS Agreement and Human Rights ………………………………………………..11
 Indian Context…………………………………………………………………13
V. Assessing existing proposals to reconcile Intellectual property and Human rights………...14
VI Future path for Intellectual property and Human Rights …………………………………..15
VII. Conclusion…………………………………………………………………………………17
Bibliography………………………………………………………………………………………………. 18
LEGAL INSTRUMENTS REFERRED
 Universal declaration of Human Rights
 International covenant on Economic, Social and Cultural Rights
 TRIPS Agreement
ABSTRACT
Human rights and intellectual property protection are two distinct fields that have largely
evolved separately. Their relationship needs to be re-examined for a number of reasons. First,
the impacts of intellectual property rights on the realization of human rights such as the right to
health have become much more visible following the adoption of the TRIPS Agreement. Second,
the increasing importance of intellectual property rights has led to the need for clarifying the
scope of human rights provisions protecting individual contributions to knowledge. Third, a
number of new challenges need to be addressed concerning contributions to knowledge, which
cannot effectively be protected under existing intellectual property rights regimes. The Twenty-
first century has seen a rapid growth of two regimes: the intellectual property rights regime and
the human rights regime. On one hand, growth of multinational corporations has led to a
stronger and stricter intellectual property rights regime. On the other hand, human rights have
gained primacy in public as well as political debates. Developing countries have argued that
intellectual property rights and Human Rights often come into conflict, particularly when
implementing their international obligations under TRIPS. Nevertheless, developing countries
are forced to provide better intellectual property protection. There is a need to give heed to the
voices of the developing countries. This research project examines the different aspects of the
relationship between intellectual property rights, human rights, and science and technology
related provisions in human rights treaties.
approach to TRIPS that reconciles states’ treaty obligations. So as with indigenous peoples’
rights and traditional knowledge, the two approaches to reconciling human rights law and
intellectual property law each remain in play.
INDIAN CONTEXT
TRIPS has given a prominent place to intellectual property rights. Strengthening of Intellectual
Property Rights (IPR) regime has become a subject of intense scrutiny and debate in many
countries.1 Developing countries face considerable challenges as they have to make significant
changes to their legislation to be in compliance. Protection of intellectual property has serious
implications on developing countries, particular, with regard to human rights protection. As one
example, medicines cannot be excluded from patentability, as TRIPS oblige countries to provide
patents in all fields of technology. However, medicinal patents have a direct impact on
accessibility and affordability for people in developing countries.2
India was given an extended period of time to bring its patent regime up to the standard. India
passed the Patents Amendment Act which came into force on 1st January, 2005. India amended
its law to incorporate its obligations under TRIPS for the third time in 2005. Prior to this
amendment, India allowed for the manufacture of generic versions of many drugs. Through this
new legislation it has now implemented a globally harmonized product patent regime and
product patents in the pharmaceutical sector. This amendment is expected to have far reaching
consequences on the Indian market, and direct implication for access to medicines in India.
Product patents tend to increase the prices of the end products by granting monopoly rights to the
producer, making medicines unaffordable to millions of people. Pharmaceutical corporations
gain by this law and would do anything to maintain their patent rights.

14
International Environmental Law Research Center, Intellectual Property, available at http://www.ielrc.
org/research_intellectual_property.php
15
Philippe Cullet, Human Rights and Intellectual Property Rights in a TRIPS Era, 29 Hum. Rts. Q. 403, 416 (2007).
V. ASSESSING EXISTING PROPOSALS TO RECONCILE HUMAN RIGHTS AND
INTELLECTUAL PROPERTY

The first group of scholars emphasizes the importance of rediscovering the historical record.3
For these commentators, resolving the normative tensions engendered by the intersection of
human rights and intellectual property requires unearthing the original understanding of the long-
forgotten creators’ rights and cultural benefit clauses in UDHR Article 27 and ICESCR Article
15. One of the aims of this historical research is to rediscover how the women and men who
wrote Articles 27 and 15 understood that this crucial balance would be struck. By carefully
parsing the negotiating histories and the wider political and social contexts that gave birth to
these clauses, commentators hope to explain why the drafters included the moral and material
interests of creators and the public’s right to enjoy the benefits of that creativity in universal
human rights instruments.
A second group of scholars views the increasing attention to intellectual property issues in the
human rights regime as an opportunity to reexamine tools that already exist in national
intellectual property laws and treaties that help government decision makers to strike a socially
optimal balance between incentivizing private innovation and enriching the cultural, scientific,
and information commons.
A third approach to reconciling human rights and intellectual property employs the rules of the
former regime to bolster arguments for expanding or diminishing the rules of the latter.
Expansionist arguments are oft en raised by industries that view their business models and
financial viability as tied to the exclusive exploitation rights that intellectual property protection
confers. Seizing upon (and oft en misreading) the creators’ rights and property rights clauses of
international instruments, these industries seek to lock in maximalist intellectual property
protection by invoking the rhetoric of human rights as trumps.

16
Audrey Chapman, Approaching Intellectual Property as a Human Right: Obligations Relating to Article 15(1)(c ),
35 Copyright Bull . 4 (2001)
VI. FUTURE PATH FOR HUMAN RIGHTS AND INTELLECTUAL PROPERTY
The debate between advocates of a conflict approach and those asserting a coexistence approach
to the intersection of human rights and intellectual property is unlikely to be resolved anytime
soon. To the contrary, the continuing tension between these two competing frameworks is likely
to have at least four distinct consequences for the international legal system. The first effect will
be an increased incentive to develop soft law human rights norms. For those advocating the
primacy of human rights over intellectual property protection rules, it is essential to identify
precisely which rights are being undermined. Looking simply at treaty texts, however, there
appear to be few clear-cut conflicts, at least under the narrow conflicts rules of customary
international law. But treaty text alone does not tell the whole story. Human rights law is notably
elastic, and contains a variety of mechanisms to develop more precise legal norms and standards
over time. Advocates endorsing a conflict approach to intellectual property are likely to press
human rights bodies to develop specific interpretations of ambiguous rights to compete with the
precise, clearly defined rules in TRIPS. In addition to creating fuel for future conflicts claims,this
pressure may have a side benefit of speeding the jurisprudential evolution of economic, social,
and cultural rights which is a still underdeveloped area of human rights law. A second paradigm
shift that may emerge is the treatment of consumers of intellectual property products as the
holders of internationally guaranteed rights. In the world of TRIPS, the producers and owners of
intellectual property products are the only “rights” holders. Individuals and groups who consume
those products are allocated the (implicitly) inferior status of users. A human rights approach to
intellectual property, by contrast, grants these users a status conceptually equal to owners and
producers. This linguistic reframing is not simply a matter of semantics. It also shapes state
negotiating strategies. By invoking norms that have received the imprimatur of
intergovernmental organizations in which numerous states are members, governments can more
credibly argue that a rebalancing of intellectual property standards is part of a rational effort to
harmonize two competing regimes of internationally recognized “rights,” instead of a self-
interested attempt to distort trade rules or to free ride on foreign creators or inventors. This leads
to a third consequence of the new intersection between human rights and intellectual property --
the articulation of “maximum standards” of intellectual property protection. Treaties from Berne
to Paris to TRIPS are all concerned with articulating “minimum standards.” But higher standards
are not considered problematic, and nothing in the treaties prevents governments from enacting
more stringent domestic intellectual property laws, or from entering into agreements that
enshrine such standards. Indeed, since TRIPS entered into force, the United States and the EC
have negotiated so-called “TRIPS plus” bilateral agreements with many developing countries.
These treaties impose higher standards of intellectual property protection than TRIPS requires.
The U.N. High Commissioner for Human Rights and the WHO have voiced strong objections to
“TRIPS plus” treaties on human rights grounds. Together with the particularization of soft law
norms discussed earlier, these objections may, for the first time, begin to impose a ceiling on the
upward drift of intellectual property standards that has accelerated over the past few decades.
Whether maximum standards of intellectual property protection in fact emerge will depend upon
a fourth and final issue: how human rights norms are received in established intellectual property
lawmaking venues such as WIPO and the WTO. In the fall of 2000, the WIPO General
Assembly approved the creation of a new Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore (IGC). The Committee held five
sessions between September 2000 and July 2003 at which it examined a wide array of issues that
were omitted from TRIPS and that respond to the demands of developing countries and
indigenous peoples. Most recently, the WIPO General Assembly extended the Committee’s
mandate, authorizing it to accelerate its work, which may include the development of new
international instruments. The High Commissioner for Human Rights, the WHO, and numerous
NGOs have been granted observer status to take part in the Committee’s discussions, creating
opportunities to raise human rights concerns within that forum. Prospects for integrating human
rights into the WTO are significantly more uncertain. The Declaration on the TRIPS Agreement
and Public Health ad4opted in November 2001 clearly reflects human rights advocacy in the area
of access to medicines. Additionally, the Doha Ministerial Declaration directs the TRIPS Council
to examine “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.”5 Yet the United States has so far blocked the CBD Secretariat’s application for
observer status in the Council, making uncertain the fate of a similar application by the High
Commissioner for Human Rights. Perhaps more importantly, the breakdown of trade talks at the

17
Declaration on the TRIPS Agreement and Public Health, WTO Doha Ministerial Conference, 4th Sess., WTO
Doc. WT/MIN(01)DEC/2 (2001)
18
Ministerial Declaration, WTO Doha Ministerial Conference, 4th Sess., WTO Doc. WT/MIN(01)/DEC/2 pp 19
(2001).
Cancún, Mexico WTO ministerial meeting in September 2003 suggests the possibility of new
rifts between developed and developing countries that may make compromises – human rights
inspired or otherwise – more difficult.

VII. CONCLUSION
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.
BIBLIOGRAPHY
WEB
 https://digitalcommons.wcl.american.edu/cgi/viewcontent LAST VISITED 10/04/2019
 https://scholarship.law.duke.edu/cgi/viewcontent LAST VISITED – 10/04/2019
 https://scholarship.law.umn.edu/cgi/viewcontent LAST VISITED- 12/04/2019
 https://www.academia.edu/8500162/The_Interface_between_Intellectual_Property_Hum
an_Rights_and_Competition LAST VISITED – 13/04/2019
 http://assets.wwfindia.org/downloads/human_rights_ipr_in_trips_era_3.pdf
LAST VISITED-14/04/2019