Intellectual Property and Human Rights: Northern and Southern Perspectives
Ana E. Santos
As developments in skill and technology brought down the marginal cost of copying, creators and related industries began worrying that non-rivalrousness and non-excludability1 would soon lead to the following scenario: if anybody (and especially everybody) could easily appropriate the goods that they produced, then no one would have the incentive to spend time and money producing them.2 Intellectual property was designed as a balancing mechanism that would solve this particular kind of market failure: through the grant of a monopoly (the copyright that will last the life of the author plus a few more decades,3 the patent that will give lead time to the inventor) it keeps alive the economic incentive that will lead to the production of public goods, therefore ensuring that the general public will have access to books and medicines that otherwise it may not have had. The catch is that when that period of exclusivity ends these goods will fall into the public domain, where anyone can use or re-use them for free.4
A different, less utilitarian approach tells us that intellectual property is rooted in natural law and has its oldest coordinates in the labour theory of property.5 Wendy Gordon summarises Locke’s arguments in the following way:
Labor is mine and when I appropriate objects from the common I join my labor to them. If you take the objects I have gathered you have also taken my labor, since I have attached my labor to the objects in question. This harms me, and you should not harm me. You therefore have a duty to leave these objects alone. Therefore I have property in the objects. Similarly, if I use the public domain to create a new intangible work of authorship or invention, you should not harm me by copying it and interfering with my plans for it. I therefore have property in the intangible as well.6
Locke’s notion of property, although subject to many reinterpretations, has remained influential in framing intellectual property as a set of rights that orbit around the sphere of human rights,7 as yet another manifestation of Justinian’s jus suum cuique tribuendi. In copyright theory, for instance, it is acknowledged that each author leaves his or her personal imprint in a given work and it is in deference to this seed of one’s personality that copyright law seeks to protect original expression. However, the fact that intellectual property deals with non-rivalrous and non-excludable goods poses some insurmountable problems to its assimilation into a strictly Lockean philosophy.8 Human rights approaches to intellectual property that assume that the latter should be regarded as a human right because it is akin to property are fatally flawed because they rely on a defective analogy, confusing the tangible goods in which the intellectual work is embodied with the intangible goods themselves.
Regardless of which one of these approaches one may choose – and the truth is that legal systems are not aseptic ecosystems, with contamination working both ways9 – there is a balancing feature that is implicit in each one of them. An analysis of a possible dialectics between human rights and intellectual property must therefore pay attention to the current status of this balance and on the external disruptive effects that an ill-calibrated ratio between protected and unprotected elements will cause.
Despite its half-blood affiliation with natural law, it took a long time before intellectual property was first scrutinised through the lens of human rights. This does not mean that there have not always been tensions between these two fields (think how copyright can apply pressure on freedom of expression,10 or how the proprietary enclosure of science may affect traditional knowledge or the right to health11), but only recently did the first claims arise for a ‘comprehensive and coherent “human rights framework” for intellectual property law and policy’.12 One of the reasons which has lead to the emergence of this new approach has been the worrisome impact that the ‘progressive alignment of trade and intellectual property policy’13 has had in the past few years. The TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights14) has, in this regard, a self-explanatory name. As Daniel Gervais explains, ‘Intellectual property rights holders ask for the linkage with trade essentially to benefit from the protection of trade sanctions and cross-sectoral trade-offs in trade agreements’.15 For those who believe that intellectual property and human rights are indissolubly tied, embracing the trade paradigm has at least two disruptive consequences, as the same author further explains: ‘unlike human rights, trade law is essentially pragmatic and results-based,’16 and ‘trade remedies are generally predicated on a showing of actual adverse impact on trade. The protection of intellectual property by trade rules does not seem to mesh with its ideological deference either as a “property” or a human right’.17
At the same time that trade was becoming a magnetic force, intellectual property rights became stronger than ever before: for instance, the term of protection afforded by copyright law was extended in the United States,18 Europe created sui generis rights over databases, the scope of patentability kept stretching and stretching over time.19 All these phenomena raise serious concerns that the balance inherent to intellectual property may have been destroyed and that anti-commons effects20 may be hindering future creation and innovation. And, in this regard, for the sake of some human rights – or some components of these rights – it is crucial to rethink intellectual property in light of a much-needed balance.
What do we Talk about when we Talk about Intellectual Property and Human Rights
One can think about the connection between intellectual property and human rights in two different ways: intellectual property rights as human rights; or intellectual property and human rights as separate but overlapping areas. The first notion has direct roots in natural law and personalistic conceptions of intellectual property and it places the creator at the centre of the system: in copyright theory, civil law countries are called droit d’auteur countries, an expression that literally translates as ‘the rights of the author’. Therefore, it is not surprising that the first time that European courts examined the relationship between intellectual property and human rights, their main concern was to make intellectual property rights fit the concept of ‘property’ as it appeared in the European Convention on Human Rights.21 In recent years, academics, non-governmental organizations and the civil society have started to voice concerns about the negative effects of over-protective legislation in the copyright and patent fields, but the debate has so far remained detached from a human rights framework. The emphasis is therefore on a static perspective – copyrights, patents and trademarks as rights, and possibly as human rights – rather than on the dynamic interplay between intellectual property and the areas affected by the grant of these exclusive rights (which, in many cases, are areas of incidence of classic human rights doctrine).
Common law countries, known as copyright countries, have built their intellectual property frameworks around the concepts of market failure and incentives to creation and innovation. The main difference between a droit d’auteur system and a copyright system is that the latter tends to recognise weaker moral rights, if any at all.22 Because less emphasis is given to the centrality of the author or the inventor, the discussion is not centred on the possibility of copyright or patents qualifying as human rights per se. Much of the critical thinking about the appropriate degree of patent and copyright protection fuelled by the recent trend towards overprotection in both these fields23 revolves around the detrimental effects that intellectual property rights have had on the access to data or medicines – to name but two examples – but it does so from an internal viewpoint: that of intellectual property (in the United States, usually based upon an analysis of the Copyright and Patent clause).24 The current state of the debate amounts to what Graeme Austin and Laurence Helfer have aptly described as a ‘historical isolation of the Human Rights and Intellectual Property regimes’.25
In recent years, movements like ‘Free Culture’26 or ‘Access to Knowledge’27 have promoted a narrowing of the gap between copyrights and human rights. Also, with the growth of the generic industry, both in the developed and in the developing worlds, together with the renewed concern with orphan diseases and drugs,28 the linkage between patents and human rights has become even more apparent and one can only hope that it will continue to expand in the near future.
The North: Intellectual Property as a Human Right? – The Debate Surrounding the European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as European Convention on Human Rights (ECHR), was signed in 1950 and established the European Court of Human Rights. Protocol 1 of the ECHR protects (physical) property, stating that everybody is ‘entitled to the peaceful enjoyment of his possessions’.29 Until very recently, the Court did not hear any cases on intellectual property, a scenario that changed with Dima v. Romania30 and Anheuser-Busch v. Portugal.31
In Dima v. Romania, an admissibility decision, the Court addressed the case of a Romanian graphic artist who worked in the Defence Ministry’s plastic arts studio and created a new State emblem for a competition supported by the Romanian Parliament. In 1992, his design was approved by the Parliament. Dima developed it and it was later published in the Official Gazette, which identified him as being ‘the graphic designer’. In 1996, Dima brought suit against two private companies that had reproduced and distributed his design and a State-owned company that minted Romanian coins, claiming that he was entitled to a statutory percentage of the profits. The Romanian Supreme Court dismissed his claims, considering that, although Dima had created the State emblem, it was the Parliament who had commissioned it and therefore the Parliament should be deemed the ‘author’ of the design.
Dima claimed before the European Court of Human Rights that Romanian national law protected ‘works of graphic art’ and that it established that the ‘author’ of a work was ‘the person who [had] created [it]’. He also claimed that copyright arose when the work took ‘concrete form’.
The Court held that Dima was not entitled to any ‘legitimate expectation’ to ‘acquire a possession’ as author of the emblem because the existence of a valid copyright was, in the first place, an unresolved issue. In such cases, the European Court defers to domestic courts, and the Romanian Supreme Court had ruled against Dima.
As Laurence Helfer points out,32 it is relevant that the Court has not tried to ‘second-guess the Romanian court’s interpretation of domestic copyright law in a case whose facts were sympathetic to the creator’. Moreover, it is also worthwhile noticing that the European Court, while deferring judgment to domestic courts, did say that article 1 of Protocol 1 protected copyrighted works, a step forward in arguing that some components of intellectual property rights – at least where copyright is concerned – might have a human rights dimension.
In Anheuser-Busch v. Portugal the European Court of Human Rights dealt with trademarks. In 1981, Anheuser-Busch Inc. sought to register Budweiser as a trademark with the Portuguese National Institute for Industrial Property. The application was not immediately granted because Budweiser Bier had already been registered as a designation of origin by Budejovicky Budvar, a Czechoslovak beer producer. In 1995, Anheuser-Busch obtained a court order cancelling the registration of Budejovicky Budvar’s designation of origin and Anheuser-Busch was therefore allowed to register Budweiser as a trademark. Budejovicky Budvar, however, invoked a 1986 bilateral agreement between Portugal and Czechoslovakia protecting designations of origin and argued that Portugal had the obligation to register its beer as geographical indication. Budejovicky Budvar lost at the lower level33 but won in appeal, which lead to the cancellation of Anheuser-Busch’s trademark. At this stage, Anheuser-Busch filled a complaint with the European Court of Human Rights, stating that Portugal had violated article 1.
The Court had to decide whether article 1 protected not only registered marks but also trademark applications. The Chamber ruled that article 1 did not apply, because Budejovicky Budvar had already contested Anheuser-Busch’s trademark when the latter filled its 1981 application and because of the bilateral agreement, which had been in effect for over two years when Anheuser-Busch challenged the geographical indication. In 2007, the Grand Chamber revised the Chamber’s decision and held that Portugal had not violated article 1 and it also declared that it applies to both registered marks and trademark applications.
The Meaning of the Decisions of the European Court of Human Rights
The jurisprudence in Europe is now clear: intellectual property rights claims can find shelter under the European Convention on Human Rights. It remains to be seen how far a doctrine of intellectual property rights as human rights may stretch, but it is nonetheless worth pointing out that the reasoning followed by the Court is premised upon an erroneous construction of what intellectual property actually is. Protocol 1 of the ECHR refers to ‘peaceful enjoyment’ of one’s ‘possessions’. This language is alien to the intellectual property field, and with good reason: the analogy between property stricto sensu and intangible property may be helpful to understand certain problems,34 but it is certainly not accurate.35 Intellectual property rights were not created to promote ‘peaceful enjoyment’ of works or inventions; they were created to promote their existence, meaning that they confer to their holders precisely the ability to exclude others from enjoying the protected intangible good at all, if they so wish to do.