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Balance Between Human Rights and Intellectual Property Laws

Balance Between Human Rights and Intellectual Property Laws

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Published by Eugenia Preethi
Striving for a balance between legitimate individual claim of authors or inventors and the progress of society as a whole at reasonable social costs.
Striving for a balance between legitimate individual claim of authors or inventors and the progress of society as a whole at reasonable social costs.

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Published by: Eugenia Preethi on Nov 11, 2011
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11/04/2012

 
 
Balance between Human Rights and Intellectual Property Laws:
Human rights and intellectual property protection are two distinctareas of law but a number of links between the two can be identified.Human rights concerns have been asserted as counter-weights to theexpansion of intellectual property rights. While, creators of intellectualproperty rights are asserting human rights for the protection andexpansion of intellectual property.Intellectual property rights relate to public protection of privaterights which is the result of the creation of human minds. This creation isintended for commercial and/or industrial applications. It is an asset inintangible form. As the society progresses both commercially and socially,the effort to protect the value and safeguard the originality of itsintangible asserts makes the law-enforcing agencies more obligatorytowards the development of commerce and industries.Public protection of intellectual property like innovations,trademarks, copyrights, brands, designs, processes etc., is of paramountimportance, for a country so as to prevent commercial piracy and tofoster sustained economic growth and maintain commercial discipline.After a period of bilateral trade agreements, the first multilateralagreements were concluded namely, The Paris Convention for protectionof industrial property in 1883.Technology is expanding to the extent that Microsoft, in 2004,obtained a US patent for transmitting power and data using the humanbody. Eventually there is an increase in the claim for patents. There is arace among technical companies all over for securing patents. Theadvantage of having a patent is that when doing business a cross-licensing agreement can be entered into. The turnover for such patentedcompanies is in billions.Members of World Intellectual Property Organization, World TradeOrganization and Trade Related Intellectual Property Rights not onlyrecognizes the importance of Intellectual Property Rights, but is alsocommitted to its protection. The Patent (Amendment) Rules, 2006 inIndia is a step to foster sustained economic growth by encouragingprivate inventions. Information Technology industries are expanding thereresearch and development sector. The race for patenting is slowly set in.A lot more multinational corporations specifically in Pharmaceuticalsectors are targeting developing countries as potential destination. The
 
fear that prevails in the minds of these multinational corporations is thelack of effective patent protection.One of Human Rights major concern is Health Care. Bio-piracy, costof patented drugs, gene-patenting are challenges to Fundamental Laws.A deal was made on AIDS drug prices between the Brazilian governmentand Abbott Laboratories, an American pharmaceutical firm. The drugamounted to one – third of Brazils budget for AIDS medication, which itprovides free of cost to HIV positive citizens. The government askedAbbott Laboratories to cut the price of drugs by 42% or grant a license tothe state to produce it. If not Brazil threatened, it would disregardAbbott’s patent and use a compulsory licensing procedure sanctioned bythe WTO to manufacture the pills without the firm’s permission.Countries increasingly complain to the WTO and WIPO that thepatent system discriminates among them. Developing countries have longcomplained that America is trying to invade their Intellectual Propertyprotections.The WTO in 1995 laid down an agreement on TRIPS. The agreementaimed to ensure adequate protection and effective enforcement of Intellectual Property Rights to the mutual advantage of both producersand users. [A 7] it prohibits discrimination on the basis of the nationality.The agreement at the national level requires the judicial procedures to befair and equitable. Agreement provides for international co-operation tofight copyright piracy and trademark counterfeiting. The object is topromote long term public interest by means of providing exclusive rightsto holders for limited duration time. After the expiration of the term of protection, protected works and inventions fall into the public domainanyone is free to use them without prior authorization by the right holder.Hence in the long term there is no conflict but rather a mutuallysupportive relation between the interests of promoting creativity andinnovation and maximizing access.In 2000 the Sub-Commission on Human Rights declared that sincethe implementation of the TRIPS Agreement does not adequately reflectthe fundamental nature and indivisibility of all human rights, including theright of every one to enjoy the benefits of scientific progress there areapparent conflicts between the intellectual property rights regime andhuman rights. Hence, the commission requested all governments to takehuman rights obligations and principles and to integrate into their locallegislations. Further encouraged the Committee on Economic, Social andCultural Rights to clarify the relationship between Intellectual Property

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