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Realizing Property Rights

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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 countries”3) and even to unconditional rejection (“Patents and PBR’s [plant breeders’ rights] are the devil incarnate”4). 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 d’être (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.

and the “WTO Agreement on Trade-Related Aspects of Intellectual Property Rights” (“TRIPs Agreement”) is but one example of the evolving scope of IP. The main rationale underlying the IP system is that it acts as an incentive encouraging development of. rather than to a single physical object in which that component is embodied. and artistic fields. thereby adding value to them. and innovation in. IP consists of intangible elements which can be incorporated in. for example. or artistic fields. scientific discoveries. trademarks. 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. The system is based on the principle that private rights are granted in order to serve the public good. 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 . provides that IP shall include rights relating to literary. IP is understood to cover the results of intellectual activity in the industrial. concluded in Stockholm on July 14. In addition. but increasingly some question whether the private interests are not being privileged to the detriment of the public interest. Indeed.Public Policy Objectives and Intellectual Property Rights page / 267 Intellectual property A brief description of intellectual property As its name illustrates. 1967. scientific. and scientific works. Generally speaking. This definition is by no means exhaustive. new products and services for the benefit of society. phonograms and broadcasts. This bad press stems in part from concerns about the perceived primacy of IPRs over public interests. “industrial property” and “copyright. IP has to do with some sort of property right in relation to intellectual achievements. or associated with. and IPRs extend to the intellectual component as such. literary.” As one source for a possible definition of IP. IPRs and property Since the expression “intellectual property” refers to the term “property. with respect to the inclusion of the protection of undisclosed information.” a brief summary is given here on the common features of and differences between property in tangible objects and IP. its public image has been characterized by growing criticism. service marks and commercial names and designations. artistic. protection against unfair competition. goods or services. thus forming an obstacle for countries wishing to pursue other urgent policy goals. and all other rights resulting from intellectual activity in the industrial. inventions in all fields of human endeavor. 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. industrial designs. scientific. IP is traditionally divided into two branches. as has been the expectation raised in a number of international negotiations. and perhaps precisely due to the increasing use and success of the IP system. the “Convention Establishing the World Intellectual Property Organization” (“WIPO”). literary. performances of performing artists.

Rights in tangible property. if so. role. perhaps more so than is the case in the area of tangible property. but both consider the owners’ rights as part of. in other words. thus providing for important exceptions to rights based on legal provisions dealing with other matters or on the rights of third parties. on the other hand. the question arises as to the extent to which IPRs should enjoy unlimited protection or. they do not prevent competition on the market by others who develop creations that do not fall under the scope of IPRs. or licensed. Finally. thus adding an international dimension to this form of protection. 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. the main ones being the following: IP is of a ubiquitous nature. this question will be briefly addressed here. There are. Put in very general terms. and limitation of IPRs. and the objects may be in different places. are generally dependent solely on the law of the country where the object is located. In other words. IPRs are subject to many restrictions. which may help to determine the scope . Neither tangible property nor IP provides an absolute and unlimited use of the protected object. a patent on a pharmaceutical product for treating a given disease would not prevent the market entry of another.” but since they are sometimes characterized as monopoly rights. in general. transferred. and the following sections will address the relationship of IPRs and human rights. are there situations. but products and services that are outside the scope of IPRs could still enter and compete on the market. Finally. also some differences between the two types of protection. unlike an economic monopoly. which justify a limitation of IPRs and. rather than a positive right to use the protected matter) in respect of the protected intellectual creations. For example. particularly in economic theory. only producers of copies or infringing products would be subject to sanctions under IPRs (so-called “free riders”). in the sense that the non-tangible IP component can be incorporated in or associated with many objects. both types of rights can be fully or partially assigned. and subject to. While no definitive answer can be given. different product for treating the same disease. IPRs and monopolies There is no international consensus as to whether IPRs constitute “monopolies. 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. 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. the general legal framework. however.Realizing Property Rights page / 268 object of the property right. 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. Under these circumstances. an attempt will be made to outline certain aspects that might contribute to better understanding the issue.

Although IPRs have at times evolved in relative isolation. but perhaps not always productive. the right to protection of the moral and material interests flowing from the results of IP production is ensured. which states that “everyone has the right to the protection of the moral and material interests resulting from any scientific. this text has laid the foundation for a long-standing debate on the relationship between IPRs and human rights.Public Policy Objectives and Intellectual Property Rights page / 269 and limitations of IPRs. to enjoy the arts and to share in scientific advancement and its benefits. and the role that IPRs can play either in supporting or in obstructing other. on the other hand.7 Two main schools of thought have set the tone of the debate. two areas. from their viewpoint.1 which states that “everyone has the right freely to participate in the cultural life of the community. The UDHR and other international instru- . between the IP system and human rights. On the one hand. such as the freedom of speech through copyright. While the confrontational. literary or artistic production of which he is the author. 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. In this context. two will be quoted here: the “Universal Declaration of Human Rights” of 1948 (“UDHR”)5 and the “International Covenant on Economic. The proponents of the co-existence theory. which may give rise to contradictions. let us examine the nature and position of IPRs within the general legal order in a little more detail. for example. Social. do not consider that there is an inherent conflict between the two bodies of law. thus establishing a hierarchy among the rights contained in the UDHR. perhaps more fundamental. which would afford higher priority to certain human rights and thus justify imposing limitations on IPRs for the benefit of interests belonging.” and Article 27. IPRs and Human Rights In order to paint a general background to the debate. the subject of attention mainly by a relatively small community of specialists. rights.” These two paragraphs of the same provision of the UDHR illustrate the complex and sometimes ambiguous relationship. 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. as they interplay in a mutually supportive manner. 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. among the many legal texts related to the interface between human rights and IPRs. since IPRs have contributed to the establishment and development of other fundamental rights. and on the other. namely public health and the rights of indigenous peoples will be examined. to the public rather than to the private interest. debate continues to probe the relationship between IPRs and human rights. it is sufficient to cite UDHR Article 27.2 of the UDHR. and Cultural Rights.” 6 For the present purpose.

and the same is true of limitations in the public interest on the exercise of property rights. but that they lack the fundamental character of human rights. Arguably. if at all. the IP system are suited for understanding its potential role. even if referred to in instruments as fundamental as the UDHR. Indeed. exploring IPRs as one of many available tools embedded in a given legal order at a given time. The function . These characteristics of IPRs would not in general. the right of property in its different variations forms the basis of many activities recognized by society. some type of rights allowing the possession and use of assets were recognized in order to ensure the functioning of a complex society. to international trade. even in those systems that rejected capitalism. of which IPRs would be a part. that IPRs are limited in time (which is not the case for fundamental human rights) and that. Arguments to the effect that IPRs are not fundamental human rights include. fundamental human rights. inter alia. for example. copyright and patents). as a form of property right. 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. that IPRs are rights established by legislative acts (which acts can also amend or abolish them). Whether one agrees or not with this approach. Historically. for example. neither unconditional support for. a relatively newly emerging dimension. nor unmitigated rejection of. since they exist independently of a normative framework. in general. that is. limitations based on environmental concerns. and universal norms. are fully convincing. however. such as the use of daily objects for personal or professional purposes. evolved over time in parallel with the development of certain forms and needs of society. apply to universally and inalienable human rights. Whether this differentiation between IPRs and human rights is generally accepted or not. the economic aspects of those rights prevail. and irrespective of arguments to the effect that IPRs differ from fundamental human rights. The notion of property has. at least in Western societies. a free and democratic society would hardly have been able to emerge and develop without some sort of property rights. it is a fact that IPRs have been treated. the applicability of which cannot be questioned or limited. ranging from everyday activities. One approach9 argues that there is a difference between widely recognized rights. because they are established and can be amended by legislative acts. although some IPRs have a component attached to the personality of the author or the inventor (for example. and how they should be treated where they are perceived to conflict with other fundamental societal objectives.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. One might thus argue that IPRs are widely recognized as property rights. 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.

is far from uncontroversial.Public Policy Objectives and Intellectual Property Rights page / 271 of IPRs in relation to access to health care and to information. the supportive function of IPRs in the broader framework of industrial. But rather than engage in an endless and probably fruitless debate over the hierarchy of rights. for example. the extent to which limitations are imposed on IPRs may be determined differently than if such a supportive role cannot be demonstrated. if not a war of principles. The following section will address precisely these issues. or in relation to indigenous knowledge. and cultural development could be further analyzed. which might never get beyond a theoretical dispute. commercial. public health and the rights of indigenous peoples. Such an assessment could examine some areas in respect of which the IP system has given rise to particular concerns. . If such a role of IP can be established.

p. 1998. Zeller. p. E.doc. Brian Martin.ohchr.” in: “Philosophy and Social Action. 4 Web site of the Action Group on Erosion. has held discussions on the impact of intellectual property (IP) rules on human rights. H.org/article. propiedad intelectual in Spanish. „Human Rights and Intellectual Property: Conflict or Coexistence?“ Minnesota Intellectual Property Review. 1981. de Soto.asp?newsid=172. Technology and Concentration. Social and Cultural Rights. Weiss. 1(c) of the International Covenant on Economic. 1990. 15. “Credit Rationing in Markets 393 – 410. 8 Propriété intellectuelle in French. April 1998. http://www. p.” New York 1990. with Imperfect Information. Social and Cultural Rights. http://www. at: www. etc. “Against Intellectual Property.Notes page / 309 Households in Bangladesh: Does the Gender of the Participants Matter?” Journal of Political Economy 106/5.etcgroup. J. 1998. Intragroup Risk Pooling. .org/english/ bodies/cescr/docs/gc17.” 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. 958–96. M. Rajasekhar. geistiges Eigentum in German. Helfer. 1990. 7 For a recent overview. 1996. 2 3 Mark Getty. E. American Economic Review 71/3. 21.” Journal of Development Studies 34/3. 5 Universal Declaration of Human Rights of December 8. Stiglitz & J.” Economic Development and Cultural Change. 6 International Covenant on Economic. 2005. July-September 1995. Hernando de. at which it adopted General Comment No. D. General Assembly Resolution 2200A (XXI).htm. 3. Reinke. p. for example. 351– 66. No. Stiglitz. 17 on Art. par. Laurence R. “Problems and Prospects of Group Lending in NGO Credit Programmes in India. Opportunity International – United States of America.org. most lately at its 35th session held from November 7 to 25. pp. 44 – 61.. The UN Committee on Economic. February 2005.” Savings and Development 20/1. August 2000.opportunity.” World Bank Economic Review 4/3. see http://www. 1948. Fall 2003. 7– 22. Opportunity International Interview with Hernando de Soto. and Social Cohesion. J. “How to Lend Like Mad and Make a Profit: A Micro-Credit Paradigm Versus the Start-Up Fund in South Africa. J. The Economist. Soto. “Determinants of Repayment Performance in Credit Groups: The Role of Program Design. “The Other Path: The Invisible Revolution in the Third World. General Assembly Resolution 217A(III).ch/udhr/ lang/eng. “Peer Monitoring and Credit Markets.unhchr. Social and Cultural Rights of December 1966.” Vol.

13 http://daccessdds. 19 .wipo. htm. see for example “Intellectual Property Policies for the Twenty-First Century: the Japanese Experience in Wealth Creation. 2005 Page 188 bottom: Eva Ludi. visited on April 12.un. 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 .htm.wipo.unhchr. 2003 Pages 249 – 254: Naoko Felder-Kuzu Page 257: Ivo Felder 10 11 http://www.Venezuela Page 188 top: Christine Bichsel.usask. see documents of the eighth session of the IGC at http://www. Aldershot 1996.int/tk/en/igc/.html.int/ meetings/en/details. “A Philosophy of Intellectual Property. Convention on Biological Diversity (CBD) of June 5.jsp?meeting_id=7130.” Korean Intellectual Property Office.ch/html/menu2/2/chr. 16 17 18 Work and documents of the IGC can be found at: http://www. 2005. 1992.” Hisamitsu Arai (former Commissioner of the Japanese Patent Office).org/english/tratop_e/trips_e/ pharmpatent_e.pdf?.org/doc/UNDOC/ GEN/N01/526/07/PDF/N0152607. http://www. “Working Towards Successful Role of Patents: The Business of Patent Technology – Considering Some Successful Cases. 2004 Page 191: Christine Bichsel.wto. 2003.org/convention/articles. http://www.org/millenniumgoals/ For further details. 15 http://www.biodiv. 12 See. For further details. for example.un. for example. see website of the World Trade Organization (WTO): http:// www. WIPO publication 1999.Realizing Property Rights page / 310 9 See.ca/nativelaw/ddir. Pictures / For having kindly permitted us the use of their photographs. 14 For an overview of the Doha Declaration and its follow-up process.” Dartmouth. Peter Drahos.aspsp.

and reporting on enterprisebased solutions to poverty in Africa. She is the Lead Researcher for “Enterprise Africa!” a research project that is investigating. Political Philosophy. Karol Boudreaux is Senior Fellow at the Mercatus Center at George Mason University. As a representative of Switzerland. His current focus is the growing global problem of forced eviction. 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. Ms. East Timor. first as a legal officer in the International Affairs Unit. Baechtold had been working at the Swiss Federal Intellectual Property Institute. Before joining WIPO. then as Head of the Patent Law Section. Jean has been active in the field of land. the European Patent Office. as well as to other areas of industrial property. and Thailand. and the importance of developing innovative alternatives in consultation with the affected communities. and development for fifteen years. . occupying senior positions in both NGOs and government. Mr. housing. he has attended expert meetings and negotiations on patent law at WIPO. Boudreaux teaches Civil Rights and Civil Liberties at George Mason University and was Assistant Dean at George Mason University’s School of Law before joining Jean du Plessis (M. His work involves legal questions related to patent 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. Mr. He has worked with communities and institutions in South Africa. in particular. and international law.A. and during the WTO TRIPS negotiations. Baechtold is an attorney-at-law (Faculty of Law of the University of Berne. international patent law harmonization. the Mercatus Center. including. Ghana. and finally as acting Head of the Patent Department. Zimbabwe. human rights.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”). Her main areas of interest include property rights and development. the negative impact this has on human development. Kenya. analyzing. Switzerland).