Human rights in IPRs regime

Intellectual Property Rights (IPRs) and Human Rights (HRs) often come in conflict. Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the uniform and strict IPRs protection obligates all member countries irrespectively. Thus, the TRIPS Agreement causes concerns and challenges some important provision of human rights. Intellectual Property (IP) laws encourage creativity and innovation by granting individual of monopoly rights for a certain period of time. In one way it creates opportunity for the individuals, on the other it confronts the basic provisions of human rights. The people of the developing and the least developed countries (LDCs) are deprived from technological equipments and research opportunities. Therefore, many provisions of TRIPS are not consisten with the basic human rights instruments like the Universal Declaration of Human Rights (UDHR), the International Covenant of Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 27.2 of the UDHR and Article 15.1 © of the ICESCR guarantees creators' right to IPRs protection. On the other hand, the TRIPS Agreement defines private monopoly of individual and also advocates for proteddction of public health through IPRs protection. It facilitates public access through flexibility provisions.

One such flexibility is of 'compulsory licensing':  NATCO v Bayer [2012] case from India is an example of a compulsory licensing matter. The case in brief is that Bayer's Anti cancer drug called 'Nexavar' was not a manufactured product in India and marketing it with extremely high prices was out of reach for common people. Thus, NATCO Pharma had filed the case against Bayer and won. This resulted in gaining a compulsory license on the drug leading a scope of saving many lives of cancer patients.

Another flexibility is of 'parallel importation'. Parallel imports allow a developing nation to take advantage of the common practice of differential pricing of drugs across different countries. For instance, if a package of 'X', a patented drug, is being sold at $250 in France and at $275 in Bangladesh; a Bangladeshi company (or the government itself) can import the drug from France and sell it at a lower price without the authorisation of the patent holder.

Furhter, experimental use also known as the 'bolar exception' works as a TRIPS flexibility for the LDCs. The bolar exemption provides an exception from patent infringement to the generic manufacturers from using and importing patented drugs for research and development. These flexibilities permit member countries to balance IPRs protection with HRs standards by serving the public interests.

With regard to the patent protection for pharmaceutical products, the TRIPS Agreement determines minimum protection of 20 years. This provision enables the patent holder to sale drugs comparatively at a high price for a longer period. Therefore, the TRIPS Agreement creates an obstacle to the enjoyment of a right to health as mentioned in article 12 of the ICESCR and article 3 of the UDHR. However, the Doha Declaration of 2001 ensures that the TRIPS Agreement will not impede a member country from exploiting measures for the protection of human, animal or plant life or health, or of the environment. Furthermore, the developed countries are insisting the developing and the LDCs to recognise the TRIPS-plus obligations.

Article 27.3 (b) of the TRIPS Agreement and the International Union for the Protection of New Varieties of Plants (UPOV) Convention recognise plant varieties protection. It also extends protection from 18-20 to 20-25 years. However, 'farmer's privilege' has been excluded from these international conventions, and hence, it would surely increase the cost of farming specially for the farmers of the developing and the LDCs. Therefore, it would affect the farmers' right to food as inserted in article 25 of the UDHR and article 11 of the ICESCR.

Article 27.1 of the TRIPS Agreement states that bio-technology may be protected through patent. In case of bio-technology, most of the part is done through the process of modification of traditional knowledge. However, the TRIPS Agreement is silent for the protection of natural resources and traditional knowledge, and undermines the principles of prior informed consent (PIC), and access and benefit-sharing (ABS) as recognised by the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

Existing HRs standards and IPRs protection framework are not adequate for the recognition and promotion of the specific rights of the indigenous community across the world. Thus, it affects indigenous rights (traditional knowledge and others) as recognised in articles 2 and 6 of the ICESCR and articles 2, 14, 24, 26, and 27of the ICCPR.

The provision for copyright protection as inserted in article 9 of the TRIPS Agreement limits reproduction and circulation of expressive works. Thus, it not only restricts the HRs interests in case of freedom of speech/expression, but also curbs the right to education – specially for the students of the developing and the LDCs.

There are diverging views as regards the question: what would be the situation, if any conflict arises between the TRIPS Agreement and the international human rights law? Some authors acknowledge that such a conflict, and they give preference to the TRIPS Agreement over the international human rights law, by mentioning article 59 of the Vienna Convention on the Law of Treaties. However, the UDHR is not in itself a binding treaty; some of its provisions have the status of customary international law. It is binding on all states except those that have clearly and persistently objected. Thus, the threshold of customary law or HRs are higher than the provisions of the TRIPS Agreement. As a result, it appears that a balance is needed between public interests (HRs) and private interests (IPRs) to ensure our right to health, food, education as well as the specific rights of the indigenous community from both the developing and the LDCs.

The writer is a PhD Research Scholar in Law at South Asian University, India.