Patents and Human Rights: A Heterodox Analysis

Long P. O. , “Invention, Authorship, ‘Intellectual Property,’ and the Origin of Patents: Notes toward a Conceptual History,” Technology & Culture 32, no. 4 (1991): 846–884.

Walterscheid E. C. , “The Early Evolution of the United States Patent Law: Antecedents (Part 2),” Journal of the Patent and Trademark Office Society 76, no. 11 (1994): 849–880.

Gagnon M. , The Nature of Capital in the Knowledge-Based Economy; The Case of the Global Pharmaceutical Industry, doctoral dissertation in political science, York University (2009); Machlup F. and Penrose E. , “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10, no. 1 (1950): 1–29.

Heins V. , “Human Rights, Intellectual Property, and Struggles for Recognition,” Human Rights Review 9, no. 2 (2008): 213–232.

TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 320 (1999), 1869 U.N.T.S. (1994) [hereinafter cited as TRIPs Agreement].

Matthews D. , Intellectual Property, Human Rights and Development: The Role of NGOs and Social Movements (North-hampton MA: Edward Elgar Publishing, 2011): at 8; Odell J. S. and Sell S. K. , “Reframing the Issue: The WTO Coalition on Intellectual Property and Public Health, 2001,” in Odell J. S. , ed., Negotiating Trade: Developing Countries in the WTO and NAFTA (Cambridge: Cambridge University Press, 2006): 85–114.

See, for example Odell and Sell , id.

In this article, by “framing” I mean to suggest a political frame and not necessarily a legal frame. In specific, I aim to focus on how the intersection of human rights and patent law occurs, and more importantly, how it is framed within policy-setting and negotiating fora.

Morin J. and Gold E. R. , “Consensus-Seeking, Distrust and Rhetorical Entrapment: The WTO Decision on Access to Medicines,” European Journal of International Relations 16, no. 4 (2010): 563–687.

See Panel on Biotechnology, Human Rights and Intellectual Property, American Society of International Law Proceedings 96 (2002): 114–120 (“The question is: to what extent is intellectual property law consistent with the human right to health in this era of genetic advances?”).

See Symposium, Public Health and International Law, Chicago Journal of International Law 3, no. 1 (2002): 1–154; Berger J.M. , “Tripping over Patents: AIDS, Access to Treatment and the Manufacturing of Scarcity,” Connecticut Journal of International Law 17, no. 2 (2002): 157–248.

Adelstein R. , “Equity and Efficiency in Markets for Ideas,” Connecticut Journal of International Law 17 (2002): 149–156; Cotter T. , “Introduction to Symposium on Intellectual Property, Development and Human Rights,” Florida Journal of International Law 14, no. 2 (2002): 147–154.

Csete J. , “Several for the Price of One: Right to AIDS Treatment as Link to Other Human Rights,” Connecticut Journal of International Law 17, no. 2 (2002): 263–272; Joni J. , “Access to Treatment for HIV/AIDS: A Human Rights Issue in the Developing World,” Connecticut Journal of International Law 17 (2002): 273–280.

Alford W. , “Making the World Safe for What? Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World,” N.Y.U. Journal of International Law and Politics 29, no. 1 (1997): 135–152.

See Helfer L. R. , “Human Rights and Intellectual Property: Conflict or Coexistence?” Minnesota Intellectual Property Review 5, no. 1 (2003): 47–61, at 54 for a brief summary of TRIPs and contribution of concern for indigenous rights.

Approximately 2/3 of the 148 members of the WTO are Developing Countries. Understanding the WTO: Developing Countries, World Trade Organization Online, available at <http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm> (last visited January 16, 2013).

U.N. Sub-Commission on the Promotion and Protection of Human Rights Res. 2000/7, Rep. OHCHR, 52nd Sess., Aug. 17, 2000, 25th mtg., E/CN.4/SUB.2/RES/2000/7 (Aug. 17, 2000) para. 2. In the Preamble to the Resolution, the Sub-Committee noted that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights.” The toned-down language of “apparent conflicts” in the Resolution's declarative paragraph is probably the result of a political compromise. For a further discussion, see Weissbrodt D. and Schoff K. , “Human Rights Approach to Intellectual Property Protection: The Genesis and Application of Sub-Commission Resolution 2000/7,” Minnesota Intellectual Property Review 5, no. 1 (2003): 1–46. It should also be noted that the Committee reminded governments of “the primacy of human rights over economic agreements” – thus suggesting a normative hierarchy with human rights above intellectual property rights.

Id., at para. 5.

Drahos P. and Braithwaite J. , Information Feudalism: Who Owns the Knowledge Economy? (London: Earthscan, 2002): at 200.

Gold E. R. , “Are Patents Impeding Medical Care and Innovation?” PLoS Medicine 7, no. 1 (2010): e1000208.

Lazzarini Z. , “Making Access to Pharmaceuticals a Reality: Legal Options Under TRIPS and the Case of Brazil,” Yale Human Rights and Development Law Journal 6 (2003): 103–138, at 123. (“Intellectual property rights should be limited when necessary to protect the public health and to the degree necessary to guarantee the general welfare”).

Sun H. , “A Wider Access to Patented Drugs under the Trips Agreement,” Boston University International Law Journal 21, no. 1 (2003): 101–136.

Id.

See, for example, WTO Ministerial Conference, Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, (Nov. 14, 2001), available at <http://www.wto.org/english/thewtoe/ministe/min0le/mindecl_trips-e.htm> (last visited January 16, 2013) [hereinafter Doha Declaration].

Sun , supra note 21, at 104.

Elliot R. , “TRIPS and Rights: International Human Rights Law, Access to Medicines, and the Interpretation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights,” Canadian HIV/AIDS Legal Network and AIDS Law Project, South Africa, 2001; Howse R. and Mutua M. , “Protecting Human Rights In A Global Economy: Challenges For The World Trade Organization,” International Centre for Human Rights & Democratic Development, Policy Paper (2000) available at <http://www.ichrdd.ca/english/commdoc/publications/globalization/wtoRightsGlob.html> (last visit January 16, 2013).

Berkman A. , “The Global AIDS Crisis: Human Rights, International Pharmaceutical Markets and Intellectual Property,” Connecticut Journal of International Law 17, no. 2 (2002): 149–155, at 151.

Sun , supra note 21, at 122. (“Although the choice between the options will be worked out politically, it is important to examine which solution would be most effective, sustainable, transparent, and legally secure according to the foregoing criteria.”).

Lazzarini , supra note 20, at 121.

Donnelly J. , International Human Rights, 3rd ed. (Cambridge: Westview Press, 2007) at 8.

Article 15(1)(c) of the ICESCR builds upon Article 27 of the Universal Declaration of Human Rights, which lays out in a similar fashion the right of an author, creator or inventor to recognition and benefit from their intellectual products (Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (1ll), U.N. GAOR, 3rd Sess., (Resolutions, part 1), at 27, U.N. Doc. A/810 (1948)).

Chapman A. , “Approaching Intellectual Property as a Human Right,” Discussion Paper for C.E.S.C.R., 24th Sess. U.N. Doc E/C.12/2000/12 (3 Oct., 2000). Note however that Chapman's later works embody more of a subjugation approach than an integrated approach. See, for example, Chapman A. , “The Human Rights Implications of Intellectual Property Protection,” Journal of International Economic Law 5 (2002): 861–882; Chapman A. , “Globalization, Human Rights, and the Social Determinants of Health,” Bioethics 23, no. 2 (2009): 97–111.

Chapman (2000), supra note 32, at 11.

Convention on the Grant of European Patents (European Patent Convention), Oct. 5, 1973, 1065 U.N.T.S. 199 (entered into force Oct. 7, 1977).

This principle is reiterated in several provisions of the European Directive on the legal protection of biotechnological inventions, which excludes from patentable subject-matter inventions the commercialization of which offends human dignity or go against ethical and moral principles recognized in member states (Directive 98/44/EC, of the European Parliament and of the Council of 6 July 1998 on the Legal Protection of Biotechnological Inventions, 1998 O.J. (L 213/16.) 37–40) as well as article 27.2 of the TRIPs Agreement, which enables members to “exclude from patentability inventions, the prevention within their commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment” (TRIPs Agreement, supra note 5).

See, generally, Dreyfuss R. C. , “Patents and Human Rights: Where is the Paradox?” in Grosheide W. , ed., Intellectual Property and Human Rights: A Paradox (Cheltenham UK: Edward Elgar Publishing, 2010): 72–96, at 73. (“But at least on the patent side, there is little reason to think that the human rights concerns associated with creative labor must be furthered by recognizing a right to full control over the information that creative labor produces.”).

Id., at 74 (“The new – human rights – justification can, in short, thwart the traditional – utilitarian – goal of limiting protection from free riders as a means of encouraging the advancement of knowledge.”).

Waldron J. , “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chicago Kent Law Review 68, no. 2 (1993): 841–889.

U.N. Secretary-General, Intellectual Property Rights and Human Rights: Rep. of the Secretary-General, ESCOR Sub-Commission on the Promotion and Protection of Human Rights, 52nd Sess., Provisional Agenda Item 4 at 8, U.N. Doc. E/CN.4/Sub.2/2001/12 (June 14, 2001) [hereinafter cited as Secretary-General Report].

See Helfer , supra note 14.

See, for example, Secretary-General Report, supra note 39, at para 4; 8 (submission by the WTO asserting existing international agreements such as TRIPS permit states sufficient room to balance intellectual property and human rights standards due to the strong public interest rationale underpinning the objectives of the agreement, all the while noting that human rights “can be used – and have been and are currently being used – to argue in favour of balancing the system either upwards or downwards by means of adjusting the existing [intellectual property] rights or by creating new rights.”); U.N. High Commissioner, The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights: Rep. of the High Commissioner, ESCOR Sub. Comm. on the Promotion and Protection of Human Rights, 52nd Sess., Provisional Agenda Item 4 at 5, U.N. Doc. E/CN.4/Sub.2/2001/13 (June 27, 2001) at 6 (stating that “[t]he balance between public and private interests found under article 15 [of the ICESCR] – and article 27 of the Universal Declaration – is one familiar to intellectual property law” but asserting that the key question “is where to strike the right balance”); Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, U.N. ESCOR, 27th Sess., at 4; 11, U.N. Doc. E/C.12/2001/15 (Dec. 14, 2001) (stating that “intellectual property rights must be balanced with the rights [in the ICESCR].”).

Helfer , supra note 14, himself does not claim to be a proponent of the coexistence approach. Rather he presents it as a school of thought opposed to the view that IPRs and human rights are necessarily in conflict.

Nagan W. P. , “International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States,” Florida Journal of International Law 14, no. 2 (2002): 155–191, at 191.

MacCormick N. , “Norms, Institutions, and Institutional Facts,” Law and Philosophy 17, no. 3 (1998): 301–345.

MacCormick N. , “Rights, Claims and Remedies,” Law and Philosophy 1, no. 2 (1982): 337–357. Illustrates at 337 how rights can belong to various normative orders:.

That somebody has a right, if true, is a proposition which belongs to the class of ‘institutional facts’, presupposing some body of norms relevant to human conduct. Thus there can be legal rights and moral rights; there can be rights in common courtesy, like my right to expect an answer when I ask a friend a question; there can be rights, by the rules of football, like the right to a penalty kick if an opponent other than the goalkeeper handles the ball in his own penalty area, and so on. [Citation omitted.].

Nagel T. , “Personal Rights and Public Space,” Philosophy and Public Affairs 24, no. 2 (1995): 83–107, at 85. (The difference between legal and moral rights laid out by Nagel is distinct from the more often-discussed distinction between status or intrinsic basis of moral rights (e.g., Quinn W. , Morality and Action, Foot P. , ed. (Cambridge: Cambridge University Press, 1993)) and instrumental theories of rights (see Sumner L. W. , The Moral Foundations of Rights (Oxford: Oxford University Press, 1987))).

Hohfeld W. N. , Fundamental Legal Conceptions, Cook W. , ed. (New Haven: Yale University Press, 1919).

For more on the history and evolution of international human rights, see Buergenthal T. , “The Normative and Institutional Evolution of International Human Rights,” Human Rights Quarterly 19, no. 4 (1997): 703–723.

Sen A. , “Legal Rights and Moral Rights: Old Questions and New Problems,” Ratio Juris 9, no. 2 (1996): 153–167, at 154.

Peters E. , Torture (Philadelphia: University of Pennsylvania Press, 1996): at 87.

Sen A. , “Elements of a Theory of Human Rights,” Philosophy and Public Affairs 32, no. 4 (2004): 315–356, at 319.

Donnelly J. , “Human Rights as Natural Rights,” Human Rights Quarterly 4, no. 3 (1982): 391–405, at 391.

The influence of natural rights theories in modern human rights law can be found for example in the opening statement of the Universal Declaration of Human Rights, which reads: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” (Universal Declaration of Human Rights, supra note 31, at 71); See also Shestack J. J. , “The Philosophic Foundations of Human Rights,” Human Rights Quarterly 20, no. 2 (1998): 201–234, at 203–204, 207.

Hilaire-Perez L. , “Invention and the State in 18th-Century France,” Technology and Culture 32, no. 4 (1991): 911–931; Mossoff A. , “Rethinking the Development of Patents: An Intellectual History, 1550–1800,” Hastings Law Journal 52, no. 1 (2001): 1255–1323.

See generally, Long , supra note 1; Drahos P. , A Philosophy of Intellectual Property (Dartmouth: Dartmouth Publishing Company, 1996); Drahos P. , “The Universality of Intellectual Property Rights: Origins and Development,” in Holmes W. C. , ed., Intellectual Property and Human Rights (Geneva: World Intellectual Property Organization, 1999). Most contemporary patent theories rely on economic – hence consequentialist justifications – theory, principally those derived from Schumpeter J. R. , Capitalism, Socialism and Democracy (New York: Harper Colophon Books, 1975) and Arrow K. J. , “Economic Welfare and the Allocation of Resources for Invention,” in Mirowski P. and Sent E. , eds., Science Bought and Sold: Essays in the Economics of Science (Chicago: University of Chicago Press, 2002): 165–180. See, however, Merges R. P. , Justifying Intellectual Property (Cambridge: Harvard University Press, 2011), who advocates a theory of intellectual property based, in part, on natural law theories.

The argument about commensurability most often arises when values are reduced to their economic value and compared. However, the same logic applies to any attempt to measure different values – here due to belong to different normative orders – on a single scale. See, generally, Gold E. R. , Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington: Georgetown University Press, 1996): at 144–163; Anderson E. , Value in Ethics and Economics (Cambridge: Harvard University Press, 1993).

For one of the ways that this occurs, see Gold E. R. , “The Reach of Patent Law and Institutional Competence,” University of Ottawa Law and Technology Journal 1, No. 1-2 (2004): 263–284.

See Mirghani S. , “The War on Piracy: Analyzing the Discursive Battles of Corporate and Government-Sponsored Anti-Piracy Media Campaigns,” Critical Studies in Media Communication 28, no. 2 (2011): 113–134.

Sell S. , “TRIPs Was Never Enough: Vertical Forum Shifting, FTAs, ACTA and TPP,” Journal of Intellectual Property Law 18, no. 2 (2010): 447–478.

See, for example, Lazzarini , supra note 20; Heins , supra note 4, at 214 (“On the other hand, there is a powerful discourse that claims that IPRs are themselves human rights. This discourse has been promoted not only by business representatives, but also by critics of capitalism who believe that, for example, indigenous peoples are being robbed of their ‘intellectual property,’ as their cultures are increasingly exposed to global market forces.”).

Sunder M. , “The Invention of Traditional Knowledge,” Law and Contemporary Problems 70, no. 2 (2007): 97–124, at 106 (“Today, claims by indigenous people and the poor go beyond equitable benefit sharing; increasingly, the poor seek to own copyrights, trademarks, and patents in their own cultural and scientific innovations. Strikingly, the traditional advocates for preserving the public domain have flipped. ‘Native peoples once stood for the commons,’ but with the imbalance of TRIPs being more and more apparent, advocates of the poor are turning their attention to securing affirmative intellectual property rights for their own cultural and scientific innovations.” [Citations omitted]).

Declaration of the Rights of Indigenous Peoples, G.A. Res. 61/296, U.N. Doc. A/RES/61/295, at 31(1) (Sept. 13, 2007).

Nnadozie K. , “Old Wine in New Skin: Traditional Knowledge and Customary Law Under the Evolving Normative Environment in Kenya,” in Bubela T. and Gold E. R. , eds., Genetic Resources and Traditional Knowledge: Case Studies and Conflicting Interests (Cheltenham UK: Edward Elgar, 2012): 183–204 describes the largely ineffective set of constitutional and legislative rules in Kenya aimed at protecting indigenous peoples and their knowledge.

See Gold , supra note 56, at 17.

Convention on Biological Diversity, art. 15, June 5, 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818.

Whitt L. A. , “Indigenous Peoples, Intellectual Property & the New Imperial Science,” Oklahoma City University Law Review 23, No. 1-2 (1998): 211–259, at 256.

Heller M. , The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (New York: Basic Books, 2008).

Rodgrigues E. B. Jr. , “Property Rights, Biocultural Resources and Two Tragedies: Some Lessons from Brazil,” in Bubela T. and Gold E. R. , eds., Genetic Resources and Traditional Knowledge: Case Studies and Conflicting Interests (Cheltenham UK: Edward Elgar, 2012): 113–180, at 164–177.

Id., at 176–177.

Malanczuk P. , Akehurst's Modern Introduction to International Law, 7th ed. (New York: Routledge, 1997): at 35–62.

While national constitutional rights have played an important role in the access to medicines campaign, they have not specifically dealt with patents. See, for example, Minister of Health and Others v. Treatment Action Campaign and Others (No 2), 2002 (10) BCLR 1033 (CC) (S. Afr.) which dealt with government obligations to provide health services under domestic human rights laws. A similar attempt in Brazil was less successful; see, S.T.F.J., Relator: Suspensão de Tutela Antecipada, 26.02.1997, 91, Diário da Justiça [D.J.], 5.03.2007.

See, for example, Tobin J. , The Right to Health in International Law (Oxford: Oxford University Press, 2012).

See, for example, Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645.

See, for example, Paris Convention for the Protection of Industrial Property, 20 March 1883, 74 U.K.F.S. 44, as revised at Stockholm on 14 July 1967.

Id., art 5.

See, for example, Sell S. , “TRIPS and the Access to Medicines Campaign,” Wisconsin International Law Journal 20, no. 3 (2002): 481–522, at 485; Drahos and Braithwaite , supra note 18, at 110–114.

Sell , id., at 491–496; Sell S. , Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003): at 121–140.

Dinwoodie G. B. and Dreyfuss R. C. , “Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO, and Beyond,” Houston Law Review 46, no. 4 (2009): 1187–1234, at 1194–1195.

See, for example, Cullet P. , “Patents and Medicines: The Relationship Between TRIPS and the Human Right to Health,” International Affairs 79, no. 1 (2003): 139–160; Forman L. , “‘Rights’ and Wrongs: What Utility for the Right to Health in Reforming Trade Rules on Medicines?” Health and Human Rights 10, no. 2 (2008): 37–52.

See Long , supra note 1, at 875–881.

See, for example, MacLeod C. , “Patent for Invention: Setting the Stage for the British Industrial Revolution?” Empiria 18 (2009): 37–58; Usserlman S. W. , “Patents Purloined: Railroads, Inventors, and the Diffusion of Innovation in 19th-Century America,” Technology and Culture 32 (1991): 1047–1075; Machlup and Penrose , supra note 3.

Morin and Gold , supra note 8; Gold E. R. and Morin J. , “From Agenda to Implementation: Working Outside the WIPO Box,” in de Beer J. , ed., Implementing the World Intellectual Property Development Agenda (Ottawa: International Development Research Centre, 2009): 57–69, at 57.

See Sell , supra note 59.

Morin J. Daley K. and Gold E. R. , “Having Faith in IP: Empirical Evidence of IP Conversions,” W.I.P.O. Journal 3, no. 1 (2011): 93–102.

See Forman , supra note 79, at 39 (“In this light, it is not surprising that there is growing consensus that in poor countries, ‘patents are not a relevant factor or effective in stimulating research and development and bringing new products to market.’ If patents in poor countries are not necessary to sustain the innovation of new medicines, this raises valid questions about the justifications for requiring them, particularly considering the human costs of limited drug access in poor countries.” [Citations omitted].).

Quoted in Mpinga J. , Tanzania: Local Researcher in SA Roots for new TB Therapy (Jan. 24, 2012) allAfrica.com, available at <http://allafrica.com/stories/201201230589.html> (last visited January 16, 2012).

See Helfer , supra note 15, at 49.

I leave aside international trade agreements relating to patent rights that have the intent of increasing well-being on a global scale.

Drahos P. , “Intellectual Property and Human Rights,” Intellectual Property Quarterly 3, no. 3 (1999): 349–371, at 370.

Carbone J. , “A Capabilities-Based Framework,” in Bubela T. and Gold E. R. , eds., Genetic Resources and Traditional Knowledge: Case Studies and Conflicting Interests (Cheltenham UK: Edward Elgar, 2012): 339–365.

Gold E. R. , “Intellectual Architecture as Place Brand,” Place Branding 2, no. 3 (2006): 220–228, at 221.

Id., at 227–228.

OECD, 2011 Survey on Monitoring the Paris Declaration (Paris: OECD, 2011) at 22 (“Stakeholders at the country level frequently cite constraints imposed by donor headquarters as bottlenecks to further progress, suggesting that many of the challenges are political in their nature. This is likely to be the case for the commitments around donors' use of country systems and untying aid, for example”.) See also, id., at 44 (“It was also noted that some donors face challenges in aligning with countries' sectoral priorities.”).