Realizing Property Rights

page / 266

Public Policy objectives and intellectual ProPerty rights

the examPles of Public health and indigenous PeoPles
/ Philippe baechtold

Introduction1 While we are witnessing major developments in technology with a dramatic impact on our lives, the intellectual property (IP) system is increasingly in the spotlight of public attention. The growing use and success of the system has naturally brought to the surface many different, and not infrequently conflicting, interests related to IP. The diverse opinions expressed in respect of intellectual property rights (IPRs) range from full support of the IP system Intellectual property is the oil of the 21st century 2) to criticism (Intellectual property is one more way for rich countries to extract wealth from poor countries3) and even to unconditional rejection (Patents and PBRs [plant breeders rights] are the devil incarnate4). Beyond the cross-cutting interests and concerns of the users of the system understood in a broad sense (IP owners, IP practitioners, governments, industry, consumers, research institutions), the IP system is confronted with numerous public policy concerns associated with developmental issues, public health, the protection of the environment, nutrition, and biological diversity, among others. This article begins with a short description of the main features of IP and its raison dtre (section I), attempts to place IP in a wider context of the public policy landscape, including its relationship with human rights (section II), and then expands on the role of IP in the context of two specific areas, namely public health and the rights of indigenous peoples.

Public Policy Objectives and Intellectual Property Rights

page / 267

Intellectual property A brief description of intellectual property As its name illustrates, IP has to do with some sort of property right in relation to intellectual achievements. Generally speaking, IP is understood to cover the results of intellectual activity in the industrial, scientific, literary, and artistic fields. IP is traditionally divided into two branches, industrial property and copyright. As one source for a possible definition of IP, the Convention Establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967, provides that IP shall include rights relating to literary, artistic, and scientific works; performances of performing artists; phonograms and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks; service marks and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields. This definition is by no means exhaustive, and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) is but one example of the evolving scope of IP, for example, with respect to the inclusion of the protection of undisclosed information. IP consists of intangible elements which can be incorporated in, or associated with, goods or services, thereby adding value to them, and IPRs extend to the intellectual component as such, rather than to a single

physical object in which that component is embodied. The main rationale underlying the IP system is that it acts as an incentive encouraging development of, and innovation in, new products and services for the benefit of society. The system is based on the principle that private rights are granted in order to serve the public good, but increasingly some question whether the private interests are not being privileged to the detriment of the public interest. Indeed, and perhaps precisely due to the increasing use and success of the IP system, its public image has been characterized by growing criticism. This bad press stems in part from concerns about the perceived primacy of IPRs over public interests, thus forming an obstacle for countries wishing to pursue other urgent policy goals, but also from fears that protection is sometimes obtained for undesired developments as well as for matter which is believed to be in the public domain. In addition, there is no unanimity among developing countries as to whether the adoption of certain levels of IP protection would result in real benefits for them, as has been the expectation raised in a number of international negotiations. IPRs and property Since the expression intellectual property refers to the term property, a brief summary is given here on the common features of and differences between property in tangible objects and IP. One common element relates to the fact that both tangible and intangible property confer an exclusive right permitting the exclusion of third parties from the use of the

Realizing Property Rights

page / 268

object of the property right. Neither tangible property nor IP provides an absolute and unlimited use of the protected object, but both consider the owners rights as part of, and subject to, the general legal framework, thus providing for important exceptions to rights based on legal provisions dealing with other matters or on the rights of third parties. These limitations range from intrinsic limitations on the one hand to more drastic measures such as the expropriation of land for public constructions or compulsory licenses in patent law. Finally, both types of rights can be fully or partially assigned, transferred, or licensed. There are, however, also some differences between the two types of protection, the main ones being the following: IP is of a ubiquitous nature, in the sense that the non-tangible IP component can be incorporated in or associated with many objects, and the objects may be in different places, thus adding an international dimension to this form of protection. Rights in tangible property, on the other hand, are generally dependent solely on the law of the country where the object is located. Finally, in general, IPRs are subject to many restrictions, perhaps more so than is the case in the area of tangible property. IPRs and monopolies There is no international consensus as to whether IPRs constitute monopolies, but since they are sometimes characterized as monopoly rights, particularly in economic theory, this question will be briefly addressed here. While no definitive answer

can be given, an attempt will be made to outline certain aspects that might contribute to better understanding the issue. Put in very general terms, while it is a fact that IPRs confer on their owners a position of exclusivity (in the sense of granting the right to exclude others, rather than a positive right to use the protected matter) in respect of the protected intellectual creations, unlike an economic monopoly, they do not prevent competition on the market by others who develop creations that do not fall under the scope of IPRs. For example, a patent on a pharmaceutical product for treating a given disease would not prevent the market entry of another, different product for treating the same disease, and copyright in a novel narrating a love story would not prevent the publishing of a love story written in a different style and way. In other words, only producers of copies or infringing products would be subject to sanctions under IPRs (so-called free riders), but products and services that are outside the scope of IPRs could still enter and compete on the market. Under these circumstances, the question arises as to the extent to which IPRs should enjoy unlimited protection or, in other words, are there situations, which justify a limitation of IPRs and, if so, to what extent? The question of the nature of property rights in respect of intangible creations in relation to other rights thus becomes fundamental in determining the scope, role, and limitation of IPRs, and the following sections will address the relationship of IPRs and human rights, which may help to determine the scope

Public Policy Objectives and Intellectual Property Rights

page / 269

and limitations of IPRs, and the role that IPRs can play either in supporting or in obstructing other, perhaps more fundamental, rights. In this context, two areas, namely public health and the rights of indigenous peoples will be examined. IPRs and Human Rights In order to paint a general background to the debate, among the many legal texts related to the interface between human rights and IPRs, two will be quoted here: the Universal Declaration of Human Rights of 1948 (UDHR)5 and the International Covenant on Economic, Social, and Cultural Rights. 6 For the present purpose, it is sufficient to cite UDHR Article 27.1 which states that everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits, and Article 27.2 of the UDHR, which states that everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. These two paragraphs of the same provision of the UDHR illustrate the complex and sometimes ambiguous relationship, which may give rise to contradictions, between the IP system and human rights. On the one hand, the right to freely participate in the cultural life of the community and to share in the scientific advance ment and its benefits is guaranteed, and on the other, the right to protection of the moral and material interests flowing from the results of IP production is ensured. Although IPRs have at times evolved in

relative isolation, the subject of attention mainly by a relatively small community of specialists, this text has laid the foundation for a long-standing debate on the relationship between IPRs and human rights.7 Two main schools of thought have set the tone of the debate. The supporters of the theory according to which human rights and IPRs are in opposition have attempted to deny IPRs the status of human rights, thus establishing a hierarchy among the rights contained in the UDHR, which would afford higher priority to certain human rights and thus justify imposing limitations on IPRs for the benefit of interests belonging, from their viewpoint, to the public rather than to the private interest. The proponents of the co-existence theory, on the other hand, do not consider that there is an inherent conflict between the two bodies of law, as they interplay in a mutually supportive manner, for example, since IPRs have contributed to the establishment and development of other fundamental rights, such as the freedom of speech through copyright. While the confrontational, but perhaps not always productive, debate continues to probe the relationship between IPRs and human rights, let us examine the nature and position of IPRs within the general legal order in a little more detail. The fact that IP refers to property in a variety of languages8 tends to suggest that the historical will of legislators in a variety of systems of jurisprudence has been to grant IPRs a position comparable to other forms of property rights. The UDHR and other international instru-

Realizing Property Rights

page / 270

ments seem to suggest that property is a part of our common legal heritage and a fundamental principle recognized in international law. Indeed, the right of property in its different variations forms the basis of many activities recognized by society, ranging from everyday activities, such as the use of daily objects for personal or professional purposes, to international trade. Historically, even in those systems that rejected capitalism, some type of rights allowing the possession and use of assets were recognized in order to ensure the functioning of a complex society. Arguably, a free and democratic society would hardly have been able to emerge and develop without some sort of property rights. But illustrating the role of property in the development of both individual freedom and a democratic and free society does not yet offer an answer as to whether IPRs are human rights or not, and how they should be treated where they are perceived to conflict with other fundamental societal objectives, even if referred to in instruments as fundamental as the UDHR. One approach9 argues that there is a difference between widely recognized rights, of which IPRs would be a part, and universal norms, that is, fundamental human rights, the applicability of which cannot be questioned or limited, since they exist independently of a normative framework. Arguments to the effect that IPRs are not fundamental human rights include, inter alia, that IPRs are rights established by legislative acts (which acts can also amend or abolish them), that IPRs are limited in time (which is not the case

for fundamental human rights) and that, although some IPRs have a component attached to the personality of the author or the inventor (for example, copyright and patents), in general, the economic aspects of those rights prevail. These characteristics of IPRs would not in general, if at all, apply to universally and inalienable human rights. Whether this differentiation between IPRs and human rights is generally accepted or not, and irrespective of arguments to the effect that IPRs differ from fundamental human rights, for example, because they are established and can be amended by legislative acts, are fully convincing, it is a fact that IPRs have been treated, at least in Western societies, as a form of property right. The notion of property has, however, evolved over time in parallel with the development of certain forms and needs of society, and the same is true of limitations in the public interest on the exercise of property rights, for example, limitations based on environmental concerns, a relatively newly emerging dimension. One might thus argue that IPRs are widely recognized as property rights, but that they lack the fundamental character of human rights. Whether one agrees or not with this approach, neither unconditional support for, nor unmitigated rejection of, the IP system are suited for understanding its potential role. A more productive way of approaching the matter could consist in adopting a more holistic view of the role and function of the IP system, exploring IPRs as one of many available tools embedded in a given legal order at a given time. The function

Public Policy Objectives and Intellectual Property Rights

page / 271

of IPRs in relation to access to health care and to information, or in relation to indigenous knowledge, is far from uncontroversial. But rather than engage in an endless and probably fruitless debate over the hierarchy of rights, which might never get beyond a theoretical dispute, if not a war of principles, the supportive function of IPRs in the broader framework of industrial, commercial, and cultural development could be further analyzed. If such a role of IP can be established, the extent to which limitations are imposed on IPRs may be determined differently than if such a supportive role cannot be demonstrated. Such an assessment could examine some areas in respect of which the IP system has given rise to particular concerns, for example, public health and the rights of indigenous peoples. The following section will address precisely these issues.

Notes

page / 309

Households in Bangladesh: Does the Gender of the Participants Matter? Journal of Political Economy 106/5, 1998, p. 95896. D. Rajasekhar, Problems and Prospects of Group Lending in NGO Credit Programmes in India, Savings and Development 20/1, 1996. J. Reinke, How to Lend Like Mad and Make a Profit: A Micro-Credit Paradigm Versus the Start-Up Fund in South Africa, Journal of Development Studies 34/3, 1998, p. 44 61. H. de Soto, Opportunity International Interview with Hernando de Soto, February 2005, Opportunity International United States of America, at: www.opportunity.org. Soto, Hernando de, The Other Path: The Invisible Revolution in the Third World, New York 1990. J. E. Stiglitz & J. Weiss, Credit Rationing in Markets 393 410. J. E. Stiglitz, 1990. Peer Monitoring and Credit Markets, World Bank Economic Review 4/3, 1990, p. 351 66. M. Zeller, Determinants of Repayment Performance in Credit Groups: The Role of Program Design, Intragroup Risk Pooling, and Social Cohesion, Economic Development and Cultural Change, April 1998. with Imperfect Information,

Public Policy Objectives and Intellectual Property Rights The examples of public health and indigenous peoples Philippe Baechtold
1

The views expressed in this article reflect the personal views of the author and do not necessarily represent those of WIPO.

2 3

Mark Getty, The Economist, August 2000. Brian Martin, Against Intellectual Property, in: Philosophy and Social Action, Vol. 21, No. 3, July-September 1995, pp. 7 22.

Web site of the Action Group on Erosion, Technology and Concentration, http://www.etcgroup.org/article.asp?newsid=172.

Universal Declaration of Human Rights of December 8, 1948, General Assembly Resolution 217A(III), http://www.unhchr.ch/udhr/ lang/eng.htm.

International Covenant on Economic, Social and Cultural Rights of December 1966, General Assembly Resolution 2200A (XXI).

American Economic Review 71/3, 1981, p.

7

For a recent overview, Helfer, Laurence R., Human Rights and Intellectual Property: Conflict or Coexistence? Minnesota Intellectual Property Review, Fall 2003. The UN Committee on Economic, Social and Cultural Rights, for example, has held discussions on the impact of intellectual property (IP) rules on human rights, most lately at its 35th session held from November 7 to 25, 2005, at which it adopted General Comment No. 17 on Art. 15, par. 1(c) of the International Covenant on Economic, Social and Cultural Rights, see http://www.ohchr.org/english/ bodies/cescr/docs/gc17.doc.

Proprit intellectuelle in French, geistiges Eigentum in German, propiedad intelectual in Spanish, etc.

Realizing Property Rights

page / 310

See, for example, Peter Drahos, A Philosophy of Intellectual Property, Dartmouth, Aldershot 1996.

Pictures
/
For having kindly permitted us the use of their photographs, we thank: Page 78/79: Satellite imagery used with permission from DigitalGlobe and Google Page 82: REUTERS Page 94: Rhodri Williams Pages 155/156: FM Center - Venezuela Page 188 top: Christine Bichsel, 2005 Page 188 bottom: Eva Ludi, 2004 Page 191: Christine Bichsel, 2003 Pages 249 254: Naoko Felder-Kuzu Page 257: Ivo Felder

10 11

http://www.un.org/millenniumgoals/ For further details, see for example Intellectual Property Policies for the Twenty-First Century: the Japanese Experience in Wealth Creation, Hisamitsu Arai (former Commissioner of the Japanese Patent Office), WIPO publication 1999.

12

See, for example, Working Towards Successful Role of Patents: The Business of Patent Technology Considering Some Successful Cases, Korean Intellectual Property Office, 2003.

13

http://daccessdds.un.org/doc/UNDOC/ GEN/N01/526/07/PDF/N0152607.pdf?, visited on April 12, 2005.

14

For an overview of the Doha Declaration and its follow-up process, see website of the World Trade Organization (WTO): http:// www.wto.org/english/tratop_e/trips_e/ pharmpatent_e.htm.

15

http://www.unhchr.ch/html/menu2/2/chr. htm. http://www.usask.ca/nativelaw/ddir.html. Convention on Biological Diversity (CBD) of June 5, 1992, http://www.biodiv.org/convention/articles.aspsp.

16 17

18

Work and documents of the IGC can be found at: http://www.wipo.int/tk/en/igc/. For further details, see documents of the eighth session of the IGC at http://www.wipo.int/ meetings/en/details.jsp?meeting_id=7130.

19

Realizing Property Rights

page / 2

The AuThors
/
Philippe Baechtold is Head of the Patent Law Section in the Sector of PCT and Patents, Arbitration and Mediation Centre and Global Intellectual Property Issues at the World Intellectual Property Organization (WIPO). His work involves legal questions related to patent law, as well as to other areas of industrial property, including, in particular, international patent law harmonization. Before joining WIPO, Mr. Baechtold had been working at the Swiss Federal Intellectual Property Institute, first as a legal officer in the International Affairs Unit, then as Head of the Patent Law Section, and finally as acting Head of the Patent Department. As a representative of Switzerland, he has attended expert meetings and negotiations on patent law at WIPO, the European Patent Office, and during the WTO TRIPS negotiations. Mr. Baechtold is an attorney-at-law (Faculty of Law of the University of Berne, Switzerland). Karol Boudreaux is Senior Fellow at the Mercatus Center at George Mason University. She is the Lead Researcher for Enterprise Africa! a research project that is investigating, analyzing, and reporting on enterprisebased solutions to poverty in Africa. Ms. Boudreaux teaches Civil Rights and Civil Liberties at George Mason University and was Assistant Dean at George Mason Universitys School of Law before joining Jean du Plessis (M.A. Political Philosophy, University of Stellenbosch, South Africa) is the Deputy Director of the Centre on Housing Rights and Evictions (COHRE) and coordinator of the COHRE Global Forced Evictions Programme. Jean has been active in the field of land, housing, and development for fifteen years, occupying senior positions in both NGOs and government. He has worked with communities and institutions in South Africa, East Timor, Zimbabwe, Kenya, Ghana, and Thailand. His current focus is the growing global problem of forced eviction, the negative impact this has on human development, and the importance of developing innovative alternatives in consultation with the affected communities. the Mercatus Center. Her main areas of interest include property rights and development, human rights, and international law. The current focus of her research is contemporary Africa and the ways in which particular institutional arrangements have either helped or hindered human flourishing and economic development on the continent.