INTELLECTUAL PROPERTY RIGHTS AND HUMAN RIGHTS: ARE THEY COMPLEMENT OR CONFLICTING?

[1] enumerate intellectual rights with other rights in the same single article. As a matter of fact, the protection of authors and creators must be understood as a necessary precondition for completing, respecting and promoting cultural freedom, taking part in cultural life and scientific progress. In other words, the rights of authors and creators have to facilitate, rather than restrict, cultural participation and scientific access.

Besides, both intellectual property and human rights are fundamentally compatible in the sense that intellectual rights try to strike the balance between incentives on the one hand and access on the other hand. Indeed, one may recognize an intersection between both systems by balancing positions and interests.

 

 

SECTION II: IP AS BEING DIFFERENT FROM HUMAN RIGHTS

The international authority responsible for the follow-up of the Universal Covenant of economic, social and cultural rights was little interested in the interpretation of intellectual property as a human right. Admittedly, most jurists specialized in intellectual property think about the commercial aspect rather than the ethical and moral considerations. However, it is of the present writer’s opinion that intellectual property considered as a human right with an ethic interest is completely different from intellectual property considered with an economic interest.

Firstly, by rewarding an individual for his personal effort, by giving him a guarantee for his costs or by considering the creation as an extension of an individual’s personality, the economic aspect of intellectual property emphasizes strongly on individualism.

In contrary, the logic of the ethical aspect of human rights is completely different. The reasoning based on human rights admits the fact that the authors/creators/inventors can be individuals as well as groups or communities. This theory recognizes the intrinsic value of the intellectual products as an expression of the human dignity and creativity. Even if utilitarian proponents raise their arguments by “fostering the social goals they posit at the heart of their claims”[2] human rights system is fundamentally different. In other words, human rights logic does not reduce the value of the product to a price or a degree of utility.

Secondly, the main character of human rights turns around the protection of human dignity and the “common good”. In this respect, human rights take in consideration the interest of the authors and creators but also the interest of the society in a larger sense. By contrast, some authors claim that the economic aspect reduces the intellectual rights to the interest of its titular. Nevertheless, such an analysis might be quite simplistic and reductive. Indeed, “the incentive structure in utilitarian arguments focuses on promoting the general public good, not on placing the individual creator as an independent object entitled to a right”[3].

 

 

SECTION III: IP AS AN OBSTACLE TO HUMAN RIGHTS

After having seen that intellectual rights are considered as human rights only if they promote the other rights, this section will demonstrate the damaging effect of intellectual property on human rights.

In the scientific domain, there is more and more privatization and reduction of the scientific publications. Some researchers delay their publications and hide their information in order to defend their intellectual property. Thus, instead of being an incentive, intellectual property is a real brake on the scientific progress. The multiplication of patents and other intellectual rights for a huge number of people will engender a situation in which everybody blocks the other. Therefore, as terrible consequences, intellectual property will reduce the innovation and the offer of products.

In addition, intellectual property is also an obstacle to another human right: the right to health. As an example, most of the time, the titular’s of patents set their price at a level far higher than generics, with the result that a huge number of people do not have any access to some useful and appropriate medicine, in spite of the fact that those people represent the majority of the developing states.

Besides, the right to alimentation is also hindered due to the fact that some big companies got large patents giving them a colossal monopole on some important plant genome.

Finally, it seems well judged to conclude with the idea that the essence of human rights itself is hindered by intellectual property. While patents and trademarks are registered rights, copyrights are not subject to any examination. From this standpoint, such an automaticity of protection does not lead to any exclusion on the grounds of morality. In addition, it has been noticed that officials responsible for the deliverance of patents generally neglect their duty to moral care. Most of them estimate neither necessary nor convenient to take in consideration moral and ethic preoccupations in a patent exam, in spite of the fact that ethic preoccupations are the soul of Human Rights.

 

 

CONCLUSION

In conclusion, one may wonder how we can maintain such privileges in our democratic society when they clearly threaten our most fundamental rights. Finally, if the regime of intellectual property is highly challenged, it is mainly because it threatens the fundamental Individual Rights of our society. Consequently, it is doubtful to believe that such a privilege holds water when it is generally accepted that fundamental freedoms and rights must never be called into question.

[1] The Universal Declaration of Human Rights, the International Covenant on economic, social and cultural rights and the American Declaration

[2] Zemer L., ‘On the value of copyright theory’, (2006) 1 IPQ 60

[3] Zemer L., ‘On the value of copyright theory’, (2006) 1 IPQ 60