Patent Rights and Human Rights: Exploring their Relationships Haugen, Hans Morten 2007-03-01 00:00:00 The assessment of the relationship between patent rights and human rights has resulted in several tentative findings, such as by the UN Sub‐Commission on the Promotion and Protection of Human Rights, that there are “apparent” or “actual or potential” conflicts. Intellectual property rights and human rights are often set up in opposition to one another. Corporate ‘Human Rights’ to Intellectual Property Protection, ___ Santa Clara L. Rev. The background of the article stems from movements in both Europe and the developing world to define aspects of intellectual property as a fundamental human right. The claim that patent rights are human rights has been robustly challenged by Wendy Gordon and Rochelle Dreyfuss, both contending in strong terms that a human rights approach has very little expression in national patent laws. Members of _ can log in with their society credentials below. 06-38, New York University Law School, Public Law Research Paper No. Res. Number of times cited according to CrossRef: 85. It then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The paradox is said to arise when one human right is pitted against another, when intellectual property rights are used to restrict access to information that could - at no real cost to the developer - be deployed in ways that satisfy fundamental human needs. TRIPs was adopted as a stand-alone agreement which makes no mention of the impacts it can have, for instance, in the field of health. In February 2013, Judge Justice John Nicholas ruled in the Federal Court of Australia in favour of a Myriad Genetics patent on the BRCA1 gene. TRIPS : Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. It must be recognised however, that the debate takes place against the background of broader social, economic and political discussions. Find out about Lean Library here, If you have access to journal via a society or associations, read the instructions below. (. Thus, it is said that intellectual property rights are grounded in fundamental concepts of human dignity and just deserts. I am enjoying Professor Osei-Tutu’s new article on intellectual property as a human right. This page was processed by aws-apollo4 in 0.156 seconds, Using the URL or DOI link below will ensure access to this page indefinitely. Convention on Biological Diversity, art. T1 - Patents, Human Rights and Access to Science. You can be signed in via any or all of the methods shown below at the same time. Additionally, the Right to Health has been incorporated in several regional agreements and consistently recognized by the U.N. Commission on Human Rights. This is due to the fact that a number of drugs used to alleviate HIV/AIDS are protected by patents. 22.9 A sole licence permits both the patent holder and a licensee to exploit a patented invention, but prevents the patent holder from licensing the rights to any other entity. This paper examines the evidence undermining the equation of patent rights and human rights. Jennifer Anna Sellin HI intersentia Cambridge - Antwerp - Portland Human rights protect the basic rights of people and groups. 06-38, New York University Law School, Public Law Research Paper No. Perhaps an appropriate example will be the implications for the right to health. Some society journals require you to create a personal profile, then activate your society account, You are adding the following journals to your email alerts, Did you struggle to get access to this article? University of Bristol Law School; Research output: Book/Report › Authored book. This book examines the challenges posed by the modern patent … Yet the complexities of the underlying science and legal environment in which it operates cannot be underestimated. The starting point for this discussion is that international trade law (which includes patents) can have significant benefits for the protection and promotion of human rights. This right frequently appears to conflict with the intellectual property regime that governs pharmaceutical patents. Along with several other international instruments, the Universal Declaration of Human Rights articulates a commitment to protect the rights of creators; these same instruments also recognize rights that require access to the fruits of creativity. These two subjects have developed in virtual isolation from each other for several decades. Moreover, the ad hoc balancing required can lead to unpredictable decision-making and an environment less conducive to investing time and money in intellectual efforts. 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. This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS Agreement, and access to medicine as guaranteed, e.g., by the International Covenant on Economic, Social and Cultural Rights. Hohfeld, W. N. , Fundamental Legal Conceptions, Cook, W. , ed. ‘In sum, Patents, Human Rights and Access to Science is an excellent book that scholars interested in the interplay of intellectual property, science and human rights should add to their reading list. A/RES/61/295, at 31(1) (Sept. 13. It is not difficult to understand why this concern is developing. Login failed. Also the World Intellectual Property Organization says that “conflicts may exist” between the two. Moreover, when a company patents a gene, it also patents the rights to what that gene (or any fragment of its DNA) might tell us about our health, including our chances of living or dying. ‘In sum, Patents, Human Rights and Access to Science is an excellent book that scholars interested in the interplay of intellectual property, science and human rights should add to their reading list. This article argues that this is the wrong question to ask. This can have human rights implications, if the relevant inventions and IP have social utility the failure to use them could impact on the realization of economic and social rights such as the right to health. Donnelly, J. , International Human Rights. See all articles by Rochelle Cooper Dreyfuss, This page was processed by aws-apollo4 in, Rochelle Cooper Dreyfuss (Contact Author). Posted: 13 Sep 2006. The book concludes that a fundamental restructuring of patent institutions is required, in which democratic oversight of patent policies would ensure meaningful realization of the right of everyone to access the benefits of science. The ACLU suit claims that patents on human genes violate the First Amendment and patent law because genes are "products of nature" and therefore can't be patented. See, for example, Minister of Health and Others v. Treatment Action Campaign and Others (No 2), See, for example, Tobin, J. , The Right to Health in International Law (. 15, Matthews, D. , Intellectual Property, Human Rights and Development: The Role of NGOs and Social Movements (. FREE EXCERPT. New York University, Law and Economics Research Paper No. This thesis adopts a legal approach to assess how international patent law and international human rights law interact in order to determine potential conflicts between both systems. For more on the history and evolution of international human rights, see Buergenthal, T. . Sign in here to access free tools such as favourites and alerts, or to access personal subscriptions, If you have access to journal content via a university, library or employer, sign in here, Research off-campus without worrying about access issues. April, 5-7, 2013 European Court of Human Rights in Strasbourg and Maison Interuniversitaire des Sciences de l'Homme - Alsace (MISHA) From April 5 to 7, 2013, the CEIPI organized and hosted the Congress of the European Intellectual Property Institutes Network (EIPIN).To commemorate the 60th anniversary of the entry into force of the European Convention on Human Rights, the Congress, … Plomer argues that while the principle captured in this fundamental human right is prima facie relevant to the determination of the nature and scope of legal intellectual property rights and patents in emerging fields of science such as genomics, the right has not been directly invoked or weighed in the reasoning of patent offices and courts. There is an emerging trend, particularly in international circles, to bemoan the human rights paradox in intellectual property. 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A human rights approach to intellectual property takes what is often an implicit balance between the rights of inventors and creators and the interests of the wider society within intellectual property paradigms and makes it far more explicit and exacting. remit of patent laws must and can be moderated by recourse to international human rights law, and human rights thinking.15The argument, often raised in, but not limited to, the access to patented medicines,16aims to moderate the terms on which patents are granted as … As these commitments become enforceable in courts of law, the stage is set for a clash between the right to control information and the right to use it for such purposes as attaining health and education, participating in cultural activities, engaging in expressive conduct, or freely pursuing intellectual inquiry. While national constitutional rights have played an important role in the access to medicines campaign, they have not specifically dealt with patents. Patent applications and existing rights You can continue to apply for, and be granted, a patent by the Intellectual Property Office (IPO). As an author’s right, copyright is not expressly mentioned in international human rights treaties and conventions. It then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. ___ (2015) (forthcoming). This site uses cookies. Dreyfuss, Rochelle Cooper, Patents and Human Rights: Where is the Paradox?. It then sets out distinctions that the human rights rhetoric tends to ignore - differences between intellectual efforts protected by copyrights and patents; between safeguarding creative individuals from involuntary servitude and giving them control over the information that their labor produces; and between holding a patent and holding the expectation of acquiring a patent. For more information view the SAGE Journals Article Sharing page. Some critics call for the pharmaceutical industry to devote greater resources to the needs of the poor, while others question whether discovery and distribution of life-saving medicines should be a for-profit enterprise at all. This is in direct contrast to the property rights as their primary purpose is to restrict the access to non-authorised, which can always be ceded in voluntary transactions. Both sides in the case … Does one size fit all? Its feasibility shows that the existing medical‐patent regime (trade‐related aspects of intellectual property rights—TRIPS—as supplemented by bilateral agreements) is severely unjust—and its imposition a human‐rights violation on account of the avoidable mortality and morbidity it foreseeably produces. Abstract. See, generally, Gold, E. R. , Body Parts: Property Rights and the Ownership of Human Biological Materials (. Create a link to share a read only version of this article with your colleagues and friends. Citing Literature . 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. SUMBAWA – Directorate General of Intellectual Property (DGIP) of Ministry of Law and Human Rights (MoLHR) signs a cooperation agreement with... August 25. The e-mail addresses that you supply to use this service will not be used for any other purpose without your consent. Biological patents in different jurisdictions Australia. The assessment of the relationship between patent rights and human rights has resulted in several tentative findings, such as by the UN Sub‐Commission on the Promotion and Protection of Human Rights, that there are “apparent” or “actual or potential” conflicts. Please check you selected the correct society from the list and entered the user name and password you use to log in to your society website. To learn more, visit our Cookies page. This product could help you, Accessing resources off campus can be a challenge. Simply select your manager software from the list below and click on download. If you have access to a journal via a society or association membership, please browse to your society journal, select an article to view, and follow the instructions in this box. This was a landmark ruling, affirming the validity of patents on naturally occurring DNA sequences. Sharing links are not available for this article. 3/2018 4 remit of patent laws must and can be moderated by recourse to international human rights law, and human rights thinking.15 The argument, often raised in, but not limited to, the access to patented medicines,16 aims to moderate the terms on which patents … Consid... Patent Rights, Access to Medicines, and the Justiciability of the Righ... Gagnon, M. , The Nature of Capital in the Knowledge-Based Economy; The Case of the Global Pharmaceutical Industry, doctoral dissertation in political science. Civil and Human Rights Data on the NJ Attorney/Lawyer list found herein has been provided by the individual Attorneys. Lee's human rights framework for patents includes a balanced approach in accordance with human rights; ensuring access to affordable existing medicines and availability of new medicines addressing primary health needs (eg neglected diseases); freedom of scientific research, and protecting the moral and material interests of the author; and international assistance and cooperation for the … Essentially, patents mean that medicines are more expensive, and in the developing world that means they will be unaffordable and unattainable for many people. It has also been held that massive and systematic violations of human rights may constitute a ‘threat to peace’ under Article 39 of the U.N. Charter. See, for example, WTO Ministerial Conference , Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, (Nov. 14, 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,”. Reference was made in the reasons of the decision to other cases in which the Applicant’s rights under Article 6(1) of the European Convention on Human Rights have been infringed. However, the same logic applies to any attempt to measure different values – here due to belong to different normative orders – on a single scale. Contact us if you experience any difficulty logging in. American Society of Law, Medicine & Ethics, Patents and Human Rights: A Heterodox Analysis, http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm, http://www.wto.org/english/thewtoe/ministe/min0le/mindecl_trips-e.htm, http://www.ichrdd.ca/english/commdoc/publications/globalization/wtoRightsGlob.html, http://allafrica.com/stories/201201230589.html, Book Review: Women's Health and Human Rights: Women's Health and Human Rights, Introduction: Merging Law, Human Rights, and Social Epidemiology, Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision. First, it may not be helpful to talk about Intellectual Property Rights (IPRs) in general terms as this might give rise to the impression that they are more or less homogenous rights, and that would be a misunderstanding of IP law. OECD , 2011 Survey on Monitoring the Paris Declaration (. (. What Constitutes ‘Reasonable’ State Action on Core Obligations? I will limit myself to patent law and human rights law. The ACLU further charged that the BRCA gene patents limit women’s access to the genetic screening because of its cost and that Myriad's monopoly on the test prevents women from getting a second opinion. There are two reasons warranting such a restricted reply. The characterization of patent rights as human rights is not only wrong, it also has unfortunate pragmatic consequences: it is harder to make a case for intruding on patent prerogatives when they are characterized as human rights than when they are justified on utilitarian grounds. AU - Plomer, Aurora. U.N. Sub-Commission on the Promotion and Protection of Human Rights Res. Convention on the Grant of European Patents (European Patent Convention), Oct. 5, 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. Does this right support intellectual property protections, even when they may negatively affect health? In this article, by “framing” I mean to suggest a political frame and not necessarily a legal frame. The decision in case T 0823/11 appeared shortly before Christmas last year and relates to European patent application number 96915827.8 which was filed as a PCT application way back in May 1995. Aurora Plomer * * Corresponding author for this work. View or download all the content the society has access to. “Where patent rights and human rights are in conflict, human rights must prevail,” the special rapporteur said. This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS Agreement, and access to medicine as guaranteed, e.g., by the International Covenant on Economic, Social and Cultural Rights. Fundamental rights are defined as rights that belong to all individuals. The book discusses both the patent law and the international human rights law involved in great depth, distinguishing between obligations under different human rights instruments and including a highly readable introduction into both areas of law. Lean Library can solve it. Eugenics also became malodorous precisely because of its connection to Hitler's regime, especially after World War II, when its complicity in the Nazi death camps was revealed. Aurora Plomer deftly navigates this terrain with great clarity and skill. A vast and severe range of human rights violations occur in the patient care context that violate rights in addition to the right to health, including many civil and political rights. ___ (2015) (forthcoming). Patent rights are not the only way — or even a sufficient way — to promote these developments. The thesis of this paper is that the equation of intellectual property rights generally - and patent rights in particular - to human rights is belied by the historical evolution of these rights and negated structurally, by the manner in which claims to intellectual products are recognized in law. 14 Citations (Scopus) Overview; Fingerprint; Abstract. The report provides a list of recommendations for countries to follow. I am enjoying Professor Osei-Tutu’s new article on intellectual property as a human right. At the same time, however, it is recognized that intellectual property rights protect information, a nonrivalrous good. On 19 November 2004, the First Division of Inner House delivered its judgment in ITP SA v Coflexip Stena Offshore Limited [2004] CS A3606/00. Yet the complexities of the underlying science and legal environment in which it operates cannot be underestimated. by Dennis Crouch. Patents, Human Rights and Access to Science Aurora Plomer . 61/296, U.N. Doc. The paper ends with examples of how a utilitarian justification for patent rights is better suited to the task of furthering social welfare. See Panel on Biotechnology, Human Rights and Intellectual Property , American Society of International Law Proceedings 96 (. However, there is also a human right that protects creative works, including scientific productions. Patient care is a discrete and important aspect of the right to health that merits attention and scrutiny as a human rights issue. By taking full advantage of the flexibility within TRIPS India purposefully chose to implement TRIPS in a manner that aims at striking a balance between TRIPS’ minimum standards and protecting access to medicines in line with the right to health. Buy Human Rights and the WTO: The Case of Patents and Access to Medicines: NCS P (International Economic Law Series) by Hestermeyer, Holger (ISBN: 9780199552177) from Amazon's Book Store. 2000/7, Rep. OHCHR, 52nd Sess., Aug. 17, Drahos, P. and Braithwaite, J. , Information Feudalism: Who Owns the Knowledge Economy? Patents, Human Rights and Access to Science. Regarding the Human Right to Health, the link between Intellectual Property Rights and the Human Rights has become apparent in the relationship between medical patents and the Right to Health, particularly in reference to the HIV/AIDS epidemics. Access to Medicines The Interface between Patents and Human Rights. Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World,”, “Human Rights and Intellectual Property: Conflict or Coexistence?”, “Human Rights Approach to Intellectual Property Protection: The Genesis and Application of Sub-Commission Resolution 2000/7,”, “Are Patents Impeding Medical Care and Innovation?”, “Making Access to Pharmaceuticals a Reality: Legal Options Under TRIPS and the Case of Brazil,”, “A Wider Access to Patented Drugs under the Trips Agreement,”, Canadian HIV/AIDS Legal Network and AIDS Law Project, “Protecting Human Rights In A Global Economy: Challenges For The World Trade Organization,”, “The Global AIDS Crisis: Human Rights, International Pharmaceutical Markets and Intellectual Property,”, “Approaching Intellectual Property as a Human Right,”, “The Human Rights Implications of Intellectual Property Protection,”, “Globalization, Human Rights, and the Social Determinants of Health,”, “Patents and Human Rights: Where is the Paradox?”, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,”, “International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States,”, “Norms, Institutions, and Institutional Facts,”, “The Normative and Institutional Evolution of International Human Rights,”, “Legal Rights and Moral Rights: Old Questions and New Problems,”, “The Philosophic Foundations of Human Rights,”, “Invention and the State in 18th-Century France,”, “Rethinking the Development of Patents: An Intellectual History, 1550–1800,”, “The Universality of Intellectual Property Rights: Origins and Development,”, “Economic Welfare and the Allocation of Resources for Invention,”, “The Reach of Patent Law and Institutional Competence,”, “The War on Piracy: Analyzing the Discursive Battles of Corporate and Government-Sponsored Anti-Piracy Media Campaigns,”, “TRIPs Was Never Enough: Vertical Forum Shifting, FTAs, ACTA and TPP,”, “The Invention of Traditional Knowledge,”, “Old Wine in New Skin: Traditional Knowledge and Customary Law Under the Evolving Normative Environment in Kenya,”, “Indigenous Peoples, Intellectual Property & the New Imperial Science,”, “Property Rights, Biocultural Resources and Two Tragedies: Some Lessons from Brazil,”, “TRIPS and the Access to Medicines Campaign,”, “Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO, and Beyond,”, “Patents and Medicines: The Relationship Between TRIPS and the Human Right to Health,”, “‘Rights’ and Wrongs: What Utility for the Right to Health in Reforming Trade Rules on Medicines?”, “Patent for Invention: Setting the Stage for the British Industrial Revolution?”, “Patents Purloined: Railroads, Inventors, and the Diffusion of Innovation in 19th-Century America,”, “From Agenda to Implementation: Working Outside the WIPO Box,”, International Development Research Centre, “Having Faith in IP: Empirical Evidence of IP Conversions,”, “Intellectual Property and Human Rights,”, “Intellectual Architecture as Place Brand,”. 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. Krishtel and Amin found their opportunity to challenge this dynamic in 2006, when the Indian government decided to give citizens broad rights to oppose patent applications. Patents, Human Rights and Access to Science offers a discerning insight into the disputes which have erupted in the constitutional courts of Europe and the US over the grant of gene patents and stem cell patents. Understanding the WTO: Developing Countries, World Trade Organization Online. Pharma patents and Human rights. 15, June 5, Heller, M. , The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (. ‘The relationship between patents, human rights and science raises fundamental questions for innovation and for access to the benefits of scientific endeavour. 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. Aurora Plomer deftly navigates this terrain with great clarity and skill. 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 , The argument about commensurability most often arises when values are reduced to their economic value and compared. This is due to the fact that a number of drugs used to alleviate HIV/AIDS are protected by patents. The assessment of the relationship between patent rights and human rights has resulted in several tentative findings, such as by the UN Sub‐Commission on the Promotion and Protection of Human Rights, that there are “apparent” or “actual or potential” conflicts. the site you are agreeing to our use of cookies. Patents and Human Rights: A Heterodox Analysis Gold, E. Richard 2013-03-01 00:00:00 Much international debate over access to medicines focuses on whether patent law accords with international human rights law. But the material interests protected by patents are important enough to require the Rapporteur to consider how to promote the right to share in scientific advancement within the framework of a globally coordinated patent regime. Ruling, affirming the validity of patents on naturally occurring DNA sequences am enjoying Professor Osei-Tutu ’ s article... May exist ” between the two Ownership of human dignity and just deserts implications... By Rochelle Cooper Dreyfuss ( contact author ) against the background of broader social, economic and political discussions in... Must be recognised however, the right to health that merits attention and scrutiny a. Legal Conceptions, Cook, W., ed on eligible orders Supreme Court came to the conclusion... 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