Opinion: protecting intellectual property rights can often lead to infringement of various social, economic, and cultural human rights obligations

Intellectual property has existed for centuries in some form or other. From 6th century Irish monks claiming ownership over a copied manuscript to 15th century Venetians issuing patents to protect original inventions, we've seen millennia of artisans placing their mark or signature on their work.

From this origin, many nations developed robust legislation to protect intellectual property, as well as measures to ensure this protection could be enforced. However, there were significant issues in protecting intellectual property at the global level due to differences in legal landscapes, as well as political difficulties in harmonising approaches and standards.

This ad-hoc and fragmented approach continued until the creation of the World Trade Organisation (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995. The latter was the result of a focused global push from the many of the developed nations of the world to introduce a global minimum standard for the protection and enforcement of intellectual property matters. This global push stemmed largely from domestic pressures from many intellectual property dependent industries and in particular, the pharmaceutical industries, seeking to prevent "free-riding".

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Due to the economic and political weight of the United States and European Union, TRIPS was largely shaped and implemented towards their standards and norms. This primarily centred on Copyright, Trademark, Patents, and Geographical Indications (GIs) due to their commercial viability. 

However, in seeking to protect the intellectual property, questions relating to infringement of human rights related to these areas of intellectual property arose. These questions arose during the development of TRIPS, leading to flexibilities and longer implementation periods for the terms of the agreement and also subsequent calls for revisions in the years following the introduction of the agreement.

These revisions were prompted by two key concerns. First, TRIPS had not accounted for the rise of the internet and how this could facilitate the infringement of intellectual property. Secondly, many of the developed nations were unhappy with the agreed levels and sought additional protections through various trade agreements. This was permitted by Article 1 of TRIPS, and were unofficially referred to as "TRIPS-plus".

From RTÉ One's Nine News, a 2013 report on pharmaceutical companies and patents

In time, the broader impact of these TRIPS-plus and the public interest in these areas came to the forefront of discussion. This took the form of conflict with various social, economic, and cultural human rights obligations. Arguably the key conflict, and one of the first to appear was in relation to the protection of pharmaceutical patents and the right to health. This centred on the question of whether it was possible to impose these ever-higher levels of patent protection to the point of prohibiting the creation of generic equivalents of vital medicines. 

The Doha Declaration stated that patent terms "can and shall be interpreted and implemented in a manner supportive of WTO Members’ rights to protect public health and, in particular, to promote access to medicines for all". While the Doha Declaration was rightfully hailed as a breakthrough from the perspective of protecting the right to health, it was not without flaws.

Facing pushback by many of the dependant western and developed nations, the TRIPS Council introduced a waiver on the requirement for domestic use of compulsory licensing for essential medicine. However, this was subject to a series of dense and complex rules and regulations to the point of severely frustrating and undermining the process. 

The dual development of intellectual property and human rights obligations will never be a perfect balance

The expanded protections under TRIPS-plus provisions further gave rise to conflict between intellectual property protection and human right obligations under the broad headings of the right of the author. This occurs where protecting an expression of work involves removing the expression of the work, and often the idea behind the expression from the public use. This is further seen in relation the right to education and the access of material. Other areas of conflict include the right to food, the right to information, and the right to freedom of expression. 

This conflict is ongoing, but it has not been as grim as one may first assume. First, numerous international bodies have repeatedly stressed that in conflicts between intellectual property protection requirements and human rights obligations, the latter should take preferences.

Secondly, recent trade agreements between the EU and its South and Central American trading partners have highlighted the importance of human rights obligations. These agreements have also expanded the protection of intellectual property to non-commercial areas such as folklore, traditional knowledge and genetic resources. In doing so, these agreements are providing intellectual property-based protection to uphold human right obligations.

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Finally, due to global shifts, the EU is moving into a leading role in international trade. In doing so, the protections afforded to human rights, inherent and enforceable within the EU, will act as a guiding principle for future negotiations. 

While the dual development of intellectual property and human rights obligations will never be a perfect balance, the last ten years have shown significant promise in seeking to find a working or imperfect balance.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ