Context: The intersection between human rights and intellectual property

Human rights  are fundamental rights that vest in people and are expressed in international instruments and national Bills of Rights. By contrast, intellectual property (IP) rights refer to a number of differing legal regimes which grant monopolies over creations of the mind; from artistic and literary works to scientific discoveries, inventions, brands and designs. Individual or collective IP is protected by law in the form of patents, copyright and trademarks, among others. IP rights are considered important insofar as they control and reward innovation.

Ironically, however, since IP rights create regimes of ownership and equate with control of creative works and inventions, an inevitable tension arises between the private rights and benefits of IP, on the one hand, and the potential benefits of knowledge to society as a whole. Here, ‘benefits to society’ is read as the fulfilment of basic human rights as enshrined, for instance, in the Universal Declaration of Human Rights (UDHR) of 1948, the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, and the African Charter on Human and Peoples’ Rights (ACHPR) of 1981.

This tension between IP and human rights plays itself out in various ways. For instance, the right to health, which encompasses a right of access to medicines (A2M), is limited by patents and trademarks insofar as these restrict access. Similarly, with regard to the right to education, copyright laws may directly limit access to knowledge (A2K) and learning materials. Anti-counterfeiting legislation affects patents, copyright and trademarks and, in turn, the rights to health, education and freedom of expression.

The bottom line is that holders of IP have strong incentives to exploit IP in ways that limit access, even when access is needed on human rights grounds. Put another way: regarding IP policy-making only as a matter of trade and industry, or even broadly as an issue of economic development, may eclipse the bigger picture – that is, the impact of IP policy on ordinary people and the fulfilment of basic needs and human rights.

The intersection of IP and human rights has received increasing scrutiny from international human rights bodies. A recent example is a report by the Special Rapporteur for cultural rights (2009–2015) which considered the right to benefit from science and copyright law. [1] The recommendations can be considered seminal and ground-breaking in the emerging area of copyright and access to education materials and, more broadly, to freedom of expression. Significantly, according to the report, adopting a human rights perspective on IP issues is both crucial and urgent, for such an approach focuses attention on a host of important issues that may get lost when copyrights and patents are treated primarily in terms of trade. These include the social function and human dimension of IP; the public interests at stake; the importance of transparency and public participation in policy-making; the need to design alternative incentive regimes to promote research, creativity and innovation; the importance of broad diffusion, scientific and cultural freedoms, and not-for-profit production and innovation; and the special consideration to be given to marginalised and vulnerable groups.

IP and rights to access to A2M and A2K in Africa

The intersection between IP and human rights is a critical but delicate balance to navigate. This is especially so in the African context and other developing regions where there is both the need to compete in the global knowledge economy and to address critical national development challenges, while also ensuring the protection of a range of human rights under international, regional and national obligations. It is against the backdrop of ensuring equitable access to such essentials as food security, health, water and sanitation, education, gender equality, energy and social justice that various forms of IP protections raise concerns from a human rights point of view.

Since the Uruguay round of the Global Agreement on Trade and Tariffs and the creation of the World Trade Organization (WTO) in the mid-1990s, there has been increasing pressure on developing countries, including African countries, by developed countries such as the United States of America (USA) to extend and proliferate copyright, patent and trademark rights and to expend public funds on enforcement of those rights. This pressure has originated from trade associations representing corporations that profit from IP, pharmaceutical companies, and movie and music intermediaries, among others.

In recent years, there has been a noticeable increase in IP law- and policy-making on the African continent. Many African countries, including Botswana, Kenya, South Africa and Uganda, have undertaken, or are contemplating, IP reform processes. However, these legislative efforts often appear to happen in silos without sufficient consideration of the bigger human rights picture. Furthermore, as with so many other imports, IP laws in African countries are often copied from developed countries and are later found to be inappropriate for the local context.

Unsurprisingly, IP law in Africa has thus become a highly contested policy area. The intersection between IP and human rights has become particularly apparent in contestations around A2M and A2K – and, as elsewhere, IP laws in Africa can either facilitate or severely hamper access to IP-protected medicines and
cultural works.

A2M is an integral component of the right to health. However, human rights such as those mentioned above are challenged or ignored by many IP regimes. For instance, the impacts of IP rights on the realisation of the human right to health became particularly visible following the adoption of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. The TRIPS agreement provides for the compulsory protection of IP rights by Member States of the WTO. It effectively supplanted earlier global IP regimes, which recognised far greater flexibility for States in applying IP regimes to suit their socio-economic needs. For example, under the Paris Convention for the Protection of Industrial Property (as amended 1979), States were permitted to exclude entire sectors from patentability and to determine on an individual basis the length of IP protection.

In response to such concerns, other international bodies have subsequently recognised and asserted A2M as instrumental to the full realisation of the right to health. For instance, the United Nations’ (UN) Committee on Economic, Social and Cultural Rights General Comment No. 14 on the right to the highest attainable standard of health provides that all health services, goods and facilities, including medicines, should be made available, accessible, acceptable and of good quality. While several aspects of the right to health are understood to be progressively realisable, certain core obligations cast immediate obligations on States, including the provision of essential medicines to all persons in a non-discriminatory manner. Other examples include the UN’s 2001 Declaration of Commitment on HIV/AIDS and the WTO’s 2001 Doha Declaration on the TRIPS agreement and public health. In a 2013 report, the UN Special Rapporteur on the Right to Health called upon States to shift from the dominant market-oriented perspectives on A2M towards a right-to-health paradigm in promoting such access.

On the need for collaboration, multidisciplinary scholarship and research-based evidence

There are a number of challenges in addressing and managing issues at the intersection of IP and human rights.

First, although issues of A2M and A2K have become mainstream political concerns as human rights issues, they are still often ignored in IP law and policy-making. If considered at all, they are treated in isolation. Similarly, while some IP reform processes invoke development concerns, most ignore human rights. This is confounded by the fact that IP and human rights are separate legal specialities, with IP considered a highly technocratic domain. They are also often in the purview of different government bodies or agencies. For instance, in South Africa IP is considered a trade matter, and therefore the concern of the Minister of Trade and Industry, while human rights may be considered the competence of the courts or of a specialist agency such as the Human Rights Commission. Similarly, at the international level IP is chiefly dealt with by the UN’s World Intellectual Property Organization (WIPO) and the WTO, whereas the UN’s High Commissioner for Human Rights is responsible for human rights.

Secondly, human rights and IP protection are two distinct scholarly fields that have largely evolved in separate disciplinary silos. Most university courses on IP law do not include a consideration of human rights, and teaching and research are often compartmentalised into IP rights, human rights, trade, health and the like. It has become increasingly evident that the complex interaction between IP and human rights requires a multidisciplinary approach. The history of A2M and A2K demonstrates an ongoing need for scholars in these fields to master multiple disciplines such as (trade) law, the economics of pharmaceutical production, public goods theory, and philosophical arguments about creativity and property. The complex and technical nature of these disciplines must not, however, obscure the central role of human rights – both as law, and as a key element in the success of the A2M and A2K movements. Universities are uniquely placed to build a new generation of scholars working in this field and to inform future thought leaders, legal experts and civil society organisers.

Finally, while the debates about appropriate IP regimes in Africa have become increasingly heated and polarised, within these debates research-based empirical evidence is notable by its absence. Not only does empirical evidence serve to confirm or contest such claims, it can also inform public debate and civil society campaigns (such as those involved in lobbying for A2M and A2K), as well as policy agendas and decision-making. Scholars therefore have a unique contribution to make in generating such evidence – and especially in developing regions such as Africa where the intersection between IP and human rights is as yet only a nascent field.

Notes:

1. The Right to Freedom of Artistic Expression and Creativity report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, Office of the High Commissioner for Human Rights. Human Rights Council 23rd Session, 14 March 2015, UN General Assembly, New York.