Felipe Fontes*

1. INTRODUCTION

With the spread of intellectual property rights worldwide, especially in the last century, some previous concepts of human rights have considerably changed, provoking an increase of public discussions focused on the relationship between intellectual property and human rights. Some critiques and questions have been raised regarding whether an intellectual property right can be a fundamental human right. The issue is not easy to answer and must be analysed carefully. Nonetheless, after defining the meaning and scope of these legal institutes (IP Law and Human Rights), along with clarifying the importance of IP law for our modern society as an essential tool to protect people, develop society and grant people welfare, the present study will attempt to prove that IP rights must be considered as human rights.

2. INTELLECTUAL PROPERTY LAW AND HUMAN RIGHTS: DEFINITION AND SOME RELEVANT ASPECTS

Intellectual Property (IP), in a rough characterisation, refers to the rights legally conferred to the practical results achieved by any kind of intellectual creativity or activity applied for the industrial, scientific, literary and artistic fields. It can be divided into two branches, “industrial property” and “copyright”. The first branch is related to inventions, industrial designs, trademarks, service marks, commercial names and protection against unfair competition. The latter covers the rights of performing artists (such as actors and musicians) in their performances, producers of sound recordings (for example, cassette recordings and compact discs) in their recordings, broadcasting organisations in their radio and television programs and computer software. These legal rights provide the creators, producers or owners of intellectual goods and services a certain time-limit to exclusively control the use made of those productions. These rights are granted in order to give a moral and economic reward to the creators or authors, regulate the rights of public access to those creations and, last but not least, promote the creativity and its dissemination and application as an important factor of economic and social development. In the same sense, human rights are considered as the universal and inherent rights of human beings regardless of legal jurisdictions and other factors such as, for instance, ethnicity, nationality and sex. Human rights, especially during the post-war period, are based on human dignity, retaining, however, the universal and inalienable character of these kinds of rights.

Apart from the frequent misunderstand and misuse of some authors, there is a great distinction between human rights and fundamental human rights, which divides these concepts into two categories. The first refers to general and universal principles and characteristics of human beings, whereas the second refers to the most important and essential human rights. In other words, the former relates to general principles and the latter to specific ones. According to Cornides (Cornides, J. : 138), “there is a frequent and common inclination in public opinion to transform everything that people believe is valuable and desirable in a right, which then can be converted into a fundamental right. However, the term “fundamental”, in fact, was created to separate and distinguish certain important principles from other, less important, to establish some kind of hierarchy of values”.

Despite the similarity between human rights and intellectual property rights, some writers argue that intellectual property aims are not true and even properly applied. They often claim that instead of protecting people, IP rights deny them the access to knowledge such as technologies or ideas, contrasting to the main scope and theorical definition of human rights. Some authors as Boyd (Boyd et al : 221), for instance, also say that the TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) - the most important IP legislation - does not achieve or protect the needs and interests from the majorities as it should do as a fundamental human right.

3. INTELLECTUAL PROPERTY RIGHTS AND THEIR IMPORTANCE TO OUR MODERN SOCIETY

It is more than apparent that IP rights have been introduced into our society with the clear purpose to protect people. Thus, it can be concluded that IP rights protect creations per si, enabling the creator or owner to control and enjoy exclusively the benefits of his product for a certain period of time without any threaten of plagiarism. Consequently, IP law can be seen further as a legal tool to protect creators of intellectual assets from theft.

Moreover, the IP rights and legislation provide protection for customers as well. As Cornides appropriately pointed out (Cornides, J. : 140), trademark prevents manufacturers from passing off their products as someone else's. As no deception is possible anymore, customers’ rights are effectively defended and this contributes to a safer consumer society.

It clearly follows that IP law aims to protect companies’ rights. Companies are totally prohibited from copying a patented invention, for instance. If a technological firm has invested intensively in research and development (R&D) and the results of its work are illegally and unlawful taken by a competitor, it is obvious that the consequences can be disastrous, in term of capital as well as in terms of reputation (Cornides, J. : 158). This is a clear evidence that IP protection fights against unfair competition and leads to a more fair trade market.

In addition, it appears that IP rights provide protection to minority groups or poor populations who could seem defenceless in regard to developed nations. Although it is often contested, IP rights have been established in order to protect indiscriminately the interests of all countries. Although the legislation could probably be more accessible, IP rights are aimed at all populations including minorities, poor and disabled people. If IP legislation, for instance, was efficaciously used by indigenes, it could much better protect some of their traditional knowledge, which can be considered as their own property (Benthall, 1999 : 2). However, is not the purpose of the present study to discuss how IP legislation could be improved to better defend poor people’s rights. The main goal, actually, is demonstrate that IP rights aim, above all, to protect people indifferently. As a result, they have to be considered as human rights.

Furthermore, it cannot be denied that IP legislation contributes greatly to the progress and the well being of all populations, rich and poor alike. It appears that IP rights create a strong and effective incentive for research and creativity over the world. This leads, especially in developing countries, to a competition rise, a cultural growth and a large stimulation for the economy. As defined in the US constitution (Hettinger, 1989 : 47), IP rights “promote the progress of science and the useful arts”. Since companies and inventors are now able to efficaciously defend their inventions, they hesitate much less to invest greatly in R&D, and this is a fact!

This situation, curiously, can also become particularly beneficial for the poor countries. The case of public health illustrates perfectly how IP legislation induces very positive effects in developing nations. Indeed pharmaceutical firms can afford to undertake intensive R&D in medicine only because IP law grants to them the rights of recovering all their investments. Pharma states, too, that without legal protection such as patents, no risk-taking and therefore no innovation could take place (Boyd et al: 228).

It is also important to realise that patents enable intellectual creations to become accessible to the public. In fact, a temporary monopoly provided by a patent is only possible if in return, the owner publicly disclose all the technical decryption of his creation (Hetting, 1889 : 36). It also must be taken into account that numerous companies are currently undertaking unnecessary high-cost research in many areas while the results of their investigations are already available in a patented invention register. As explained in Cornides’survey (Cornides, J. : 144), innovative technologies or ideas are shared by the international community instead of being kept secret and thus contribute greatly in accelerating the progress in many areas.

Finally, it is true that developing countries are often suspicious regarding the application of IP rights. There is, however, strong evidence that the proper application of IP rights could significantly improve the standard of living for both poor and rich countries. This confirms again that the IP legislation represents a great tool to lead society towards progress.

4. CONCLUSION

All things carefully considered, it is clear that IP rights must be considered as human rights, however, the fact whether or not it is a “fundamental” right remains controversial. As Cornides properly defined (Cornides, J. : 138), the term “fundamental” qualifies a human right, which is considered essential for the well-being of all. In contrast, Mann states that China, due to a very different cultural point of view, is still not involved in IP law and in spite of this, a lot of research and creativity has taken place over the last 10 years (1996 : 380). Mann’s observation implies that progress might take place without IP protection and as a consequence this protection should not be considered as a fundamental human right.

Mann’s thesis is not supported, however, by the Charter of Fundamental Rights of the European Union. Indeed, it stipulates that “every one has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions [...] Intellectual property shall be protected”. Hence, this important agreement recognises strongly IP rights as a fundamental human right (Cornides, J. : 140). There is no doubt that the IP legislation is essential for our society’s well-being. Hettinger (1989, 36) also agrees with the fact that people are entitled to the product of their labour. The right of property has, for a long time, been defined as a fundamental right. Our society changes constantly and although the term IP was meaningless sometime ago, it is now clear that this new form of property can no longer be ignored.

BIBLIOGRAPHY

Benthall, J. (1999) The Critique of Intellectual Property. Anthropology Today, Vol 15, No 6 1-3

Boyd, L. , W. A. Kerr and N. Perdikis Agriculture Biotechnology Innovations versus Intellectual Property Rights – Are Developing Countries at the Mercy of Multinationals ? The Journal of World Intellectual Property

Cornides, J. Human Rights and Intellectual Property – Conflict or Convergence ?

Hettinger, E. C. (1989) Justifying Intellectual Property. Philosophy and Public Affairs, Vol. 18, No 1, 31-52

Mann, S. (1996) To Steal a Book Is an Elegant Offence: Intellectual Property Law in Chinese Civilization. Journal of Interdisciplinary History, Vol. 27, No 2, 379-381.


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* Felipe Fontes is a lawyer specialized in Business Law, Intelectual Proprerty and Information Tecnologhy. He is Master in International Business Law for Queen Mary College - University of London, scholarship holder selected for the Alben Program, member of Associação Nordestina de Propriedade Intelectual (ANEPI) and of the Instituto Brasileiro de Política de Direito da Informática (IBDI). Articles published in national and international magazines. He is invited to make lectures in national and international events, on subjects about The Right of Computer Science and the Copyright.