Human Rights and Intellectual Property: Two Systems Built Apart

In one line

Human rights law and intellectual property law were built in the same decade by different institutions, on different premises, with different beneficiaries, and they met only in the 1990s.

The two histories

The intellectual property line. Paris in 1883, Berne in 1886, the United International Bureaux for the Protection of Intellectual Property from 1893, WIPO in 1967, a specialised agency of the United Nations in 1974, TRIPS in 1994. Made by industrial property offices, ministries of commerce, publishers' and manufacturers' associations, and latterly trade negotiators.

The human rights line. The Universal Declaration in 1948, the two Covenants in 1966, in force in 1976, the treaty bodies from the 1980s, the High Commissioner from 1993. Made by foreign ministries, the human rights organs of the United Nations, and civil society.

They ran in parallel for a century and almost never crossed. Berne does not mention human rights, the Universal Declaration does not mention patents, and the WIPO Convention of 1967 states an objective of promoting protection without any balancing clause.

The four differences that matter

Who holds the right. A human right belongs to a human being. Article 15(1)(c) of the Covenant, on the reading of General Comment No. 17, protects the author, meaning the creator, whether man or woman, individual or group of individuals; it does not protect a company. An intellectual property right belongs to whoever owns it, which is usually a corporation and often not the creator.

How long it lasts. General Comment No. 17 states the point at paragraph 2: in contrast to human rights, intellectual property rights are generally of a temporary nature, and can be revoked, licensed or assigned to someone else, whereas human rights are timeless expressions of fundamental entitlements of the human person.

Whether it can be traded. Intellectual property rights may be allocated, limited in time and scope, traded, amended and even forfeited. A human right cannot be sold.

What it is for. Paragraph 1 of the General Comment puts it directly: human rights derive from the inherent dignity and worth of all persons, whereas intellectual property rights are first and foremost means by which States seek to provide incentives for inventiveness and creativity, encourage dissemination, develop cultural identities and preserve the integrity of productions for the benefit of society as a whole.

So one is an end and the other is an instrument. Every argument in this module descends from that sentence.

When they met

1994. TRIPS made intellectual property standards binding on almost every State and enforceable by trade retaliation. Suddenly a treaty about commerce determined the price of medicines, the availability of textbooks and the ownership of seed.

1995 to 2000. The consequences became visible: antiretroviral prices in southern Africa, the suit brought by pharmaceutical companies against the South African Medicines Act, the patents granted abroad over turmeric, neem and basmati.