Evaluating the Intellectual Property (IP) Rights on the Mirror of Human Rights

The allocation of rights over Intellectual Property (IP) has significant economic, social and cultural consequences that can affect the enjoyment of human rights. IP regimes seek to balance the moral and economic rights of creators and inventors with the wider interests and needs of the society. The heart of the debate on IP rights and human rights lays a distinction between individual rights and community rights.IP is a generic term that refers to intangible objects, such as literary works, artistic productions, scientific discoveries, and plans for inventions and designs, which acquire their value primarily from creative efforts. In the new global economy of ideas, ownership, control and access to creative works and scientific knowledge have considerable economic impact, giving rise to fierce competition over intellectual and creative works.

Copyright, patents, designs, trademarks and protection against unfair competition forms the traditional core of IP. The subject matter of these rights is disparate. Inventions, literary works, artistic works, designs and trademarks formed the subject matter of early IP law. IP rights are often described as intangible property rights. The key difference between rights of real property and IP is that in the latter case the object of the right is non-physical.

World IP rights are enshrined as human rights in the UDHR. Article 27 of Universal Declaration provides that (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.” And sub-Article (2) provides “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.” These rights are further emphasized by Article 15 of the ICESCR, Article 19 of the ICCPR, the Vienna Declaration and Program of Action, and other international and regional instruments.

IP rights have in recent years become increasingly relevant in diverse policy areas, including trade, health, culture and heritage, investment, environment, food security, scientific and technological progress. The ICESCR is the major international human rights instrument addressing these issues. UDHR is considered to be the single most authoritative source of human rights norms. The ICESCR and the ICCPR, along with the UDHR are said to constitute the universal bill of human rights.

IP is covered by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). This Agreement, which was a product of the Uruguay Round, it sets minimum standards for national protection of IP rights and imposes enforcement measures, including the potential for trade sanctions against WTO members who do not comply with WTO rules and procedures. The power of the WTO has been described as unprecedented in the field of IP protection. The development of a global economy in which IP plays a central role underscores the need for the human rights community to claim the rights of the author, creator and inventor, whether an individual, a group, or a community, as a human right.

The UNESCO Declaration on the Protection of the Human Genome and Human Rights adopted by the UN General Assembly in 1998 recognizes the common heritage principle, at least on a symbolic level. Article 53(a) of the European Patent Convention specifically stipulates that patents should not be granted for inventions “the publication or exploitation of which would be contrary to ‘ordre public’ or morality”.

The Constitution of Bangladesh under Article 40 and 42 guaranteed that every citizen shall have right to property. And within the general definition, property produced through creative thoughts can also be included. Thus patents, licenses, trademarks and copyrights are held to be property distinct from physical or mental property. Upon these premises, it can be argued that, the Supreme law of the land gives recognition of the IP as of right.

Human rights and IP, two bodies of law that were once strangers are now becoming increasingly intimate bed-fellows. IP regimes should have an explicit human rights basis and ethical orientation.