Striking A Balance Between Intellectual Property Rights And Human Rights In The Era Of Technology And Innovation

Mohd. Rehan Ali & Khan Obaida

21 March 2024 6:57 AM GMT

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    Intellectual property (IP) constitutes the legal realm encompassing creations of mind such as artistic works, literary masterpieces and innovations etc. Intellectual property rights are a bundle of exclusive rights over these creations of mind which is vested with the creator to use his creations without fear of competition, at least for a specific period of time.

    The Constitution of United States, written in 1787 was the first document to recognize such rights. Later on these rights were also granted in Article 27 of the UDHR, which safeguards the “moral and material interest” of creators in their “scientific, literary, or artistic productions,” as an integral component of its foundational principles. IP rights are labeled as the negative rights because they prevent others from stepping against already created work. On the other hand, the term human rights arise from the concept that all human beings are born free and equal in dignity and rights. These are those fundamental rights which are inalienable and essential for a human being. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. In modern era of rapid technological advancements, the delicate balance between fostering innovation and upholding ethical standards has become a critical concern. The intersection between Intellectual property rights (IPR) and human rights takes center stage in contemporary discussions. Though the debates about the conflict of these rights with Human Rights were the matter of discourse from last two decades but this has been closely considered by the international community after the Coronavirus pandemic and concerns access to vaccines and other medicines. IP rights are labeled as the negative rights because they prevent others from stepping against already created work.

    The Ethical Dilemma

    The dilemma that arises in the intersection of IPR and human rights lies in the potential restriction of access to knowledge and information. There is also a disparity in technological development, with some regions at the forefront of innovation while others are struggling to catch up. The problem arises when advanced technologies, protected by stringent IP laws, remain inaccessible to populations in less developed countries. Hence striking a balance between the two and ensuring access to knowledge, information and technological advancement poses a significant challenge.

    IPR and Right to Health

    Patent rights and access to life saving medicines has always been a contentious issue. As per the 2017 report of the WHO and World Bank, over half of the global population, exceeding 7.3 billion individuals, lacked access to essential medicines and fundamental health services. The right to life includes right to healthy life, which is a moral minimum and its denial with any sort of justification is deeply offensive to the idea of life itself. The persons who have invested their time and money in doing researches they must feel encouraged because if they will not feel encouraged then they are not going to do the same in the future. On the other hand what good is the innovation if you can't protect human beings? It does not matter whether the democracies of the world make health a human right, or a constitutional right, but the truth of the matter is that this right is hostage to patent rights of innovators. During the period of 2000- 2001, a significant confrontation unfolded between the pharmaceutical industry giants and 12 million HIV patients had lost lives in Africa. In a remarkable turn of events, Cipla successfully appealed to the world for a patent waiver on a global scale to allow supplies of anti-HIV AIDS drugs to Africa under one dollar a day. It serves as a valuable lesson for the world, showcasing that successful initiatives can align economic interests with innovative solutions while simultaneously addressing broader global welfare concerns.

    Case study of Gene Patenting

    Till the 1980s, gene patenting was prohibited and considered a “product of nature,” but in the case of Diamond vs. Chakrabarty, the court, by a majority of 5-4, held that a genetically modified strain of bacteria capable of degrading components of crude oil and use in cleaning oil spills was patentable. After the decision of the Supreme Court, the United States Patent and Trademark Office (USPTO) opened a pietara of biotechnological patents. There are two opinions among the scientific community about whether granting patents for gene sequencing will foster or deter research. One group believes that granting patents on genes will lead to an increase in the economy through inventive activity and assumes that the refusal to accord patent rights to genetically engineered organisms would slow down the pace of research in this field. While the other group believes that commercialization and privatization of the patenting of partial and uncharacterized cDNA sequences will reward those who make routine discoveries but penalize those who determine biological function or application. Such an outcome would impede the development of diagnostics and therapeutics, which is clearly not in the public interest. The patenting of genes is considered a violation of human dignity because genes are considered "products of nature,” which is highly criticized by every religion. In a modern world, some scientists and human rights watchers compare biopatenting with piracy and biocolonialism. The commercialization of genetic science has clearly discouraged data sharing among scientists. One specialist in biotechnology patenting describes the situation as follows: “You no longer have a clearly bounded territory of open, noncommercial science... It's like a lottery of sorts, and no one wants to discover they've just parted with a winning lottery ticket. Advocates of public ownership point out that government funds have frequently played a major role in sponsoring the research that has led to these discoveries, and it is contrary to the public interest to then turn over the fruits to a single owner.

    Striking Balance Between IPR and Human Rights

    Adopting a flexible legal framework is crucial. Intellectual property laws should incorporate mechanisms such as compulsory licensing, allowing temporary overrides of patent rights in cases of public health emergencies. These provisions strike a balance by ensuring access to essential innovations while acknowledging the paramount importance of human rights, particularly the right to health. Additionally, fair use doctrines and public interest considerations in copyright laws create a nuanced legal environment where IPR coexists with the broader societal needs.

    Responsible innovation practices play a pivotal role in achieving equilibrium. Integrating ethical impact assessments in the early stages of research and development ensures that innovators proactively consider the potential societal implications of their creations. This approach aligns intellectual property rights with ethical standards and human rights principles. Ongoing monitoring and adaptation further solidify responsible innovation, allowing for the identification and rectification of potential human rights concerns throughout an innovation's lifecycle.

    Inclusive intellectual property strategies contribute significantly to balancing IPR and human rights. Encouraging open-source models in software development and promoting open access to research and educational resources fosters collaborative innovation and aligns with principles of inclusivity. Such strategies prioritize the dissemination of knowledge, ensuring that the benefits of technological advancements are widely accessible and supporting the right to education.

    International collaboration and norms are essential components of a balanced approach. Harmonizing international standards in intellectual property and human rights reduces disparities and conflicts, fostering a cohesive global approach. Information sharing and the exchange of best practices on ethical innovation allow nations to learn from one another, contributing to a collective effort to balance IPR and human rights.

    Public-private partnerships, particularly through corporate social responsibility (CSR), play a crucial role. Corporations adopting ethical business practices that prioritize societal well-being alongside profit contribute to a balanced intellectual property landscape. Transparency in intellectual property practices and public accountability mechanisms enhance trust, ensuring that corporate interests align with human rights principles.

    Public awareness and advocacy are instrumental in maintaining this delicate balance. Educating the public about the ethical implications of intellectual property decisions empowers individuals to advocate for a balanced approach. Civil society engagement ensures that diverse perspectives are considered in shaping intellectual property policies, strengthening the democratic process.

    Achieving equilibrium between IPR and human rights involves a combination of legal frameworks, responsible innovation practices, inclusive strategies, international collaboration, public-private partnerships, and public awareness. A holistic and collaborative approach is essential to navigate the complexities of the intersection between intellectual property rights and human rights in the pursuit of a fair and ethical innovation landscape.

    Relevant Case Laws:

    In the Novartis v Union of India case (AIR 2013 SC 1311), the Supreme Court of India prioritized the significance of lifesaving drugs over patent rights. Novartis Pharmaceutical Company contested the constitutionality of Section 3(d) of the Patent Act, 1970, seeking a patent for a cancer drug involving the substance imatinib mesylate. The court ruled that imatinib mesylate did not meet the criteria of Section 3(d) and, therefore, was not patentable, emphasizing that the mere discovery of a new form of a known substance does not qualify as innovation. The detailed interpretation affirmed the constitutional validity of Section 3(d), marking a paradigm shift in the approach towards patents and lifesaving drugs. The judgment underscored the global unacceptability of denying access to crucial medicines to millions due to pharmaceutical companies' monopolies.

    In an another matter of Bayer Corporation v Union of India and others, AIR 2014 Bom 178 the compulsory license has been granted to NATCO Pharma Ltd., a generic drug manufacturer to produce and sell Nexavar. In the present case, the judiciary made it clear that the public interest is of prime importance and India will not tolerate the exploitation of its masses by drug giants.

    The experiences of developing countries like South Africa, Thailand, and India are indicative of the difficulties faced by the other developing and least developed countries in implementing TRIPS flexibilities for making essential medicines available to their population at affordable prices. The Thailand government issued three compulsory licenses in Plavix for heart disease and Kaletra (Abbott) and Efavirenz (Merck) for a drug against AIDS on the ground that such licenses could benefit many people and their use would establish the example for other countries to use compulsory license for social welfare.

    In navigating the delicate intersection between Intellectual Property Rights (IPR) and human rights, the text underscores the imperative to strike a harmonious balance. Analyzing pivotal case laws, such as Novartis v Union of India and Bayer Corporation v Union of India, it accentuates the growing recognition of public interest over exclusive patent rights, particularly in the realm of essential medicines. The ethical dilemma arising from access restrictions and technological disparities demands a multifaceted approach. Proposing solutions, the text advocates for flexible legal frameworks, responsible innovation practices, and inclusive strategies. It stresses the pivotal role of international collaboration, exemplified by experiences in countries like South Africa and Thailand, in leveraging TRIPS flexibilities for social welfare. The conclusion emphasizes the need for public-private partnerships and heightened public awareness to maintain a delicate equilibrium. Ultimately, the text `champions a holistic and collaborative paradigm to navigate the complexities of IPR and human rights, ensuring that innovation aligns with ethical standards, accessibility, and the broader principles of human dignity.

    Authors: Mohd. Rehan Ali & Khan Obaida, Law students at the Faculty of Law, Aligarh Muslim University. Views are personal.

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