Disjunction between human rights and IPR

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Disjunction between human rights and IPR

Saturday, 08 December 2018 | Makhan Saikia

Disjunction between human rights and IPR

Many of us have completely overlooked how human rights of the indigenous people, the needy and the poor are violated by giant MNCs in the guise of protecting their prized Intellectual Property Rights

On December 10, the Universal Declaration of Human Rights (UDHR) of the UN is completing its 70th anniversary. At this juncture, our planet has seen numerous instances of horrendous violation of the basic human rights of the millions. While looking at these tragedies, many of us have completely overlooked how human rights of the indigenous people, the needy and the poor are violated by giant multinational corporations (MNCs) in the guise of protecting their prized Intellectual Property Rights (IPRs).

It has happened mainly in the field of traditional knowledge, health, food and Geographical Indications (GI) in several parts of the developing world. This does not bear the fact that human rights and the IPRs are two antagonistic poles by nature. However, ironically, the two of them have been put in parallel lines by many to serve their vested interests.

The interface between human rights and IPRs draw the attention of the governments, policy makers, civil society organisations (CSOs), and a number of individual activists.

The irony is that these actors advance human rights arguments as counterweights to the massive extension and the enforcement of the global IPR regime from the World Intellectual Property Organization (WIPO) through the WTO-TRIPS (Trade Related Aspects of Intellectual Property Rights) to the Trans-Pacific Partnership (TPP) of our time in the fields of health, education, freedom of expression, privacy and the rights of indigenous people. Simultaneously, innovators and owners of IP are offering human rights justification for seeking legal protection of their exclusive rights.

But then it is possible to envision the connection between human rights and IPRs as kind of massive expansion of the horizons of both domestic and international legal instruments over the years. In fact, the growth of global institutions and awareness about them has supported the coming of human rights and IPRs to a point of conversion.

Needless to say, initially, the whole journey of IPRs started with discrete bilateral agreements between nations of Europe and mostly restricted to the developed countries. The harbinger of its modern form came along with two trendsetting multilateral treaties which took place by the end of the 19th century: The Paris Convention of Industrial Property (1883) and the Berne Convention of Literary and Artistic Works (1886).

This has literally laid the foundation stone of the international IPR regime much before the onset of the two World Wars which largely affected the conception of the global human rights framework. Only after 65 years of the starting of the Paris Convention, the first UN sponsored human rights declaration saw its beginning. Thus the inception of an international human rights perspective is of recent origin than IPRs, though concern and struggle for basic rights is as old as human civilisation.

From these humble beginnings, both human rights and IPRs terrain evolved much faster than one could imagine in their geographic scope, substantive reach and in prescriptive detail. Thus, issues multiplied, with the advancement of the information revolution and population, accompanied by an array of actors mostly heralded by globalisation and technology. It is realised that the form and pattern of the juridical boundary, as well as a mature interface between human rights and the IPRs are yet to crystallise.

Now let us see how human rights and IPRs go together and where they come in conflict. Notwithstanding their long period of separation or non-interaction, there are ample juridical evidences that they converge both on conceptual and practical grounds. And, it is precisely mentioned in the International Bill of Rights. The Article 27 of the UDHR provides:

A) 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.

B) 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.

Besides, Article 25.1 of the UDHR states, “Everyone has the right to a standard of living adequate to the health of himself and his family, including clothing, housing and medical care and necessary social services.” While offering clear legal backing to these provisions of the UDHR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 in its Article 12.1 says State parties to the Covenant recognises the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

Today, overall impression is that the global IP regime directly supervised by the WTO and post-TRIPS WIPO truly caters to the demands of the rights holders than serving common man on the road.

Far beyond this, much controversial TPP (minus America) is increasingly becoming a grave threat to human rights protection in several fields. Even way back in 2016, an independent UN expert on human rights, Dr Alfred de Zayas, warned that the TPP is a serious threat to human rights and no country should sign it. Further he commented that the Investor State Dispute Settlement (ISDS), a unique built-in mechanism in the TPP, arbitrations are fundamentally imbalanced and unjust, adding that the historic agreement conflicted with guarantees of human rights and State sovereignty in the UN Charter.

He said, “The last 25 years have delivered numerous examples of abuse of rights by investors and unconscionable arbitral awards that have not only led to violations of human rights, but have engendered a ‘regulatory chill’ or even a ‘regulatory freeze’.” In a nutshell, what has come around and making headlines in popular perception today is that business treaties, particularly mega deals like the TRIPS or the TPP, pose harm to basic freedoms and rights such as access to water, food, medicine, education and very seriously to a clean environment. Above all, these trade treats make poverty even worse on this planet.

It is widely argued that the WIPO, the nodal and specialised agency of the UN, needs to walk an extra mile for turning the existing global IPR regime into a more human rights friendly one. Equally the WTO-TRIPS framework is to see that the developing and the least developed nations should not lose their valued resources in the hands of the MNCs of the developed world in the name of research, development and creation of more employment opportunities for locals.

The WIPO and the WTO policy-making and implementation are to ensure that the needy and poor are away from the clutches of the giant corporations while expanding and promoting the new IPR network. Some researchers have already had their opinions that there has been a serious lack of emphasis of basic or human rights in the works and all treaties of the WIPO. It is believed that a human rights perspective of the WIPO would provide greater accessibility and participation of society. It is interesting to note that there is nothing in the WIPO mandate that prevents the organisation from stressing human rights to a greater extent, the integration of human rights into existing IPR policies and programmes into the future development of the WIPO Development Agenda. This would finally be advancement in building up a human rights framework for the WIPO.

With the Doha Declaration of 2001, the lingering doubts over the jurisprudential grounding or the interface between human rights and the IPRs should have been over. Because this declaration tried to moderate the TRIPs Agreement to be responsive to the development imperative that it alleged to have sidelined or rather ignored. But then since 2001, the emergence of numerous post-TRIPs bilateral and multilateral treaties has further raised the concern of violation of human rights.

At this point, when the entire world is fast moving towards an era of “intellectual capitalism”, such an advanced system of social relations is defined not more by social divisions of labour but by social divisions of knowledge.

These divisions are widely reflected in continuous creation of knowledge pools, clusters and networks both at global and local levels which have become irresistible today. What holds the key of this marauding expansionist regime is the centrality of the intangible form of property than the age-old tangible properties such as land and industrial assets. Simply put, it is a phenomenal change and a paradigm shift. At this hour, a sustained guarantee of the protection of our basic human rights while promoting and exploiting the IPRs is to be ensured by the international watchdogs such as the WIPO, the WTO and through an overall supervision of the UN by sticking to the cardinal principles of the UDHR with the assistance of an array of civil rights groups and activists.

(The writer is an expert on International affairs)

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