The history of protection and promotion of intellectual property (IP) is not very long. But in nearly 80 years, the IP regime has become prosperous. However, it’s not true that human civilization was not enjoying the rights over their creation prior to the 20th century. The truth instead is that they were bound to compromise with any good or bad fate caused due to non-availability of protection of law to their creative property.
So, on the one hand, people were in quest of unlimited power to exercise commercial rights over their property and, on the other, some people were busy making undue and surreptitious violation of other authors’ intellectual property rights. In 1948, the world community came up with a charter of human rights in response to barbarous acts which outraged the conscience of mankind during the Second World War. Much known as the Universal Declaration of Human Rights (UDHR), this document charted a solid foundation of human rights recognizing them as bedrock of freedom, justice and peace. In addition to many other human rights, UDHR also gave birth to a vision to protect one’s scientific, artistic and literary creations which is what we know as the intellectual property today.
With the passage of time, the UDHR’s vision of IP has prospered into so big a regime that today we have more than a dozen of international conventions and an equal number of global organizations to protect and promote the right of the creator over their intellectual property ranging from trademarks to patent software gigs to industrial designs, among others. Further to that, such a legal regime on IP has significantly contributed to economic, social and cultural development of societies. This article seeks to discuss the very vision of UDHR as to how it sought to lay the foundation for IP protection.
That one liner
Perhaps, the drafters did not afford the luxury to access the means and methods of today to forecast precisely the potential explosion of knowledge in the 21st century or later. However, despite such deficiency of resources, their vision was so encompassing that human civilization finds it fitting probably for ages to come. The vision that lies in the ‘one liner’ is what is being construed with a greater scope every new day. Perhaps, there is still a lot more for us to infer from the letters and read between the lines of the UDHR—the divine document of human rights. Yes, the one liner in the Article 27.2 of the same reads: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
These 27 words have been such a grand proposition that we have copied them ditto in many of our international human rights instruments as well as national legislation—such as International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and our constitution—in order to regulate our intellectual property regime. We continue to seek its meaning and spirit in our university classrooms. We see the legal fraternity making vast interpretations in defense of this vision during courtroom proceedings. And, most importantly, we continue to create, innovate and trade our intellectual property being assured of the well-founded vision and reflection of the same as a guarantee clause in various national and international legislations.
Human rights and IP rights
The interface of human rights and intellectual property rights is subtle and at times overlapping. However, we must be mindful of the fact that these borrowings of the UDHR vision now appearing in international or national human rights instruments is rather limited in scope so far it is concerned with intellectual property. This is so because intellectual property rights are temporary in nature. Contrary to other basic human rights, IP rights can be revoked, licensed or assigned to someone. They can also be traded, amended and even forfeited, whereas human rights are timeless expressions of fundamental entitlements of the human person.
“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author:” This one liner from Article 27.2 of Universal Declaration of Human Rights set the foundation.
Except for this difference in scope and nature, IP rights have derived a lot from UDHR and there is a mutually inclusive interface between these two areas of rights. For example, the UDHR provision on safeguarding author’s ”moral and material interests” resulting from any scientific, literary or artistic production covers a large spectrum of protection. In fact, the protection of ‘moral interests’ of authors was one of the main concerns of the drafters of UDHR. It meant to convey that authors of all artistic, literary, scientific works and inventors shall retain, in addition to just remuneration of their labor, a moral right on their work and/or discovery which shall not disappear, even after such a work shall have become the common property of mankind. UDHR intended to proclaim the intrinsically personal character of every creation of the human mind and its resulting into a durable link between creators and their creations. This fundamental proposition of UDHR has now seen a great expansion in relation to its meaning.
Article 15, paragraph 1 (c) of ICESCR has elaborated and recognized this provision of UDHR on ‘moral interests’ as the right of creators over their scientific, literary and artistic productions and to object to any distortion, mutilation or other modification or,other derogatory action in relation to such productions, which would be prejudicial to their honor and reputation. This has provided the intellectual property rights regime an extensive outlook of protection. It is in this premise, we are able to seek remedy today against any of the distortions, modification to or any derogatory acts against our creations. IP rights laws, therefore, are a boon for creators. Protection of the trademarks of giants such as Google or Adidas or patent right of Apple or copyright of the best seller creators, for example, are the outcome of such provision, which originally came from UDHR. It is interesting to know that it is this right that has made it possible for companies like ‘Gucci’ to receive a compensation of USD 4.7 million in relation to their trademark infringement by another company named ‘Guess’. This was not the case earlier. Albeit temporary, the IP rights provide for the individual creators (natural persons) a due share of their labor as a remuneration in return for a standard living, which is a fundamental human right.
As the extended scope of this provision, this protection equally applies to legal persons as well which also have to and are expected to share their gain for the benefit of the larger society they operate in. In fact, when a natural person is granted protection to make a standard living out of his creation, the legal persons also are protected to earn and inspired to share their earning for the greater good of the societies. Of millions of such examples, a noted Tech giant Apple’s benefit sharing with the society is worth noting. It has been spending USD 100 million on underserved schools since 2014. Likewise, another giant, Google, has committed to invest USD 1.5 billion in renewable energy. Such trends continue to institutionalize and grow in the form of corporate social responsibility.This has become possible only because of the fair competition ensured by the IP rights laws.
Beyond the concept
Intellectual property rights in the traditional sense denote a specific set of laws designed to foster commercial creativity and industrial innovation of individual creators. Cognizant of the fact that indigenous peoples’ intellectual property rights extend to include a wide range of subject matters, beyond the concept of an individual creator and protection system thereof, World Intellectual Property Organization and UNESCO are working on grounds to expand the communal rights, which are closely linked to land, cultural heritage and environment, and also to cultural property. This apart, some indigenous communities inherit some unique features of knowledge, creative expressions and manifestations that in entirety make their culture a distinct one and hence a heritage to be protected.
Legal regime on intellectual property has significantly contributed to economic, social and cultural development of societies.
The ILO Convention 169 has already provided opportunities for countries ratifying it to develop required frameworks, partnerships and other special measures to protect indigenous cultures. These efforts on IP rights laws can still be construed as the newer interpretation of the term ”Everyone…” from UDHR vision. Some countries have already reformed their legislations to ensure the indigenous people’s property rights. Novajo Nation vs Urban Outfitters case from the USA and Maori people’s protection of their indigenous culture by New Zealand are some examples to this end. The UDHR vision of ‘Everyone’ continues to grow from individual human person to legal person to indigenous community.
Thus, that one liner from Article 27.2 of the UDHR, which is the foundation of international human rights law on IP rights and has inspired more than 80 international human rights treaties and declarations, is not only unique to its spirit but also a vision that persuades our conscience for unfolding it into a newer scope of meaning to protect the intellectual property rights of the modern day.
Dila Datt Pant, a development professional, is an intellectual property rights lawyer.