Introduction to the Conference: Themes, objectives and structure 
General Theme of the Conference
The general theme of the conference is articulated as The Human Rights Paradox in Intellectual Property Law. This theme – the common denominator of the conference's sessions – relates to the fact that in today's intellectual property law, human rights simultaneously play a rather paradoxical role. On the one hand, human rights are presented as the fundament of the intellectual property law system and its distinct domains. On the other hand, human rights are used as instruments to restrict and limit the execution and enforcement of intellectual property rights.
In its first role, human rights may be perceived as the source from which intellectual property rights may be derived. Human rights approached from this angle serve as the fundament of the intellectual property law system and its distinct domains, such as copyright law and patent law. This perspective is aligned with contemporary developments that advocate a broadening of the view on intellectual property rights. Some assert that they do not merely have an economic rationale and implication, but that they should be pictured in the broader contexts of striving for human survival and the related interests of cultural and biological diversity, access to information and communication, access to health care and pharmaceutical products, and even-handed socio-economic development in the era of globalization. In its second role, human rights law may be perceived as a superior legal regime that affects the workings of supposedly subordinate regimes, including intellectual property law. Human rights approached from this angle may be invoked so as to restrict the enforcement and execution of intellectual property rights in concrete cases. Presently, a trend may be observed in which human rights are relied upon in concrete cases to limit, as some would contend, the “unbridled” exploitation and enforcement of intellectual property rights if such is to be deleterious to the aforementioned interests. This trend fits in with an overriding development in which a growing resistance emerges against the exclusivity conveyed by intellectual property rights and the manner in which right holders use such rights for their private benefit and without regard to important societal interests.
In the course of the conference, the question will be addressed whether, and, if so, to what extent both roles fit within an overriding development towards the so-called constitutionalisation of private law and, in respect thereof, our pretext that traditional intellectual property law exclusively belongs to the private law domain is indeed emphasized.
The previously rather separatist approach to the domains of, on the one hand, private law and, on the other hand, public law, is scrutinized, and developments towards a more integrative approach, in which both domains intermingle and merge, may be observed. The dual role of human rights law in respect of the recognition, formation and enforcement of intellectual property law is surely aligned with this development as well. These topics are particularly related to the sub-themes of Culture & Communication and Health & Agriculture.
Objectives of the Conference
To discuss, gather, initiate and offer room for exchange among legal and other scholars, as well as representatives from legal practice and the private business sector, national and international governmental officials and representatives of non-government organizations:
The Human Rights Paradox in Intellectual Property Law
I. Clarification: to inquire into how both roles of human rights are aligned with intellectual property law – thus as a source and as a restriction;
II. Justification: to address whether such a perception of and an approach to human rights and intellectual property rights is appropriate;
III. Consequences: to analyze the implications thereof for intellectual property law in view of the sub-themes of Culture & Communication and Health & Agriculture.
Method and Structure of the Conference
To enable effective and lively exchanges concerning the aforementioned matters, the conference facilitates the presentation of different positions which one could take towards the respective topics. Therefore, the conference comprises a general plenary meeting, in which introductions are given to human rights law, intellectual property law, the trends in, so to say, the ‘privatization of public law', the latter fitting within the overriding development of the constitutionalisation of private law. Thereafter, the specific part entails plenary sessions in which both copyright and patent law are addressed in respect of the general theme: The Human Rights Paradox. During each session a presentation in favour and against the respective subjects will be given (pro/contra positions), after which questions can be asked and comments can be
made. These
sessions are followed by a plenary workshop, in which
the topics and issues raised during the previous
presentations can be discussed and analysed in depth.
Discussion leaders will initiate the exchanges
pursuant to tailored and concise questions and/or
comments. Both the introductory and pro/contra sessions and workshops will be concluded by a plenary case study session on the second day of the conference. During this session, two case studies will be presented. These case studies relate to the sub-themes Culture & Communication and Health & Agriculture. The final meeting will address the results obtained in respect of the issues that will be formulated with regard to the conference's objective.
The conference will host a maximum of 50 participants.
Participation is therefore free of charge.
Steering Committee
The organizing committee consists of
Prof. Dr. Willem Grosheide,
Lucky Belder LLM, MA and
Mr. Jerzy Koopman LLM. Please feel free to contact them if you have any substantive questions about the conference's themes and programme. Please refer to the contacts section on this website.
The Human Rights Paradox in Copyright Law
Human Rights and Copyright Law
A State of the Art Assumptions
Over time the initial ownership of copyrights has become increasingly related to entrepreneurs ( entrepreneurial copyright ) and less to individual persons ( authorial copyright ). Accordingly and simultaneously, the domain of copyright law, respectively the object of copyright, has been broadened from works of authorship in the strict sense of art and literature to every form of what can indeed be called cultural information in the vernacular sense of the term (e.g. also encompassing computer programs and databases). From the Berne Convention 1886 onwards, copyright law has had an international character. Important actual international legal instruments are the WIPO Copyright Treaty 1996 and the various respective EU directives. Those international instruments either have a direct effect or are implemented into national law and should all read in harmony with the WTO TRIPS agreement 1994. WTO's involvement with copyright law is of major importance for today's view of copyrights, since it has ensured that copyright law is part of trade law, copyrights being as much cultural as well as commercial assets.
Human rights are part of public law in both civil law and common law legal systems. Their main classification is in the form of classic human rights (e.g. rights of freedom and property) and social human rights (e.g. rights of association and to take industrial action). Recently, a new form of human rights has been inserted into this catalogue:; so-called cultural rights, having as their objectives the participation of every person in the cultural life of their community. The first purpose of human rights is to protect the citizens of a state against state interference with their private sphere. This is called the vertical effect. However, over time human rights have also become of importance in relations between private persons. This is called the horizontal effect, securing within the national territory a general framework for positive action by the state for every citizen. In the cultural rights vocabulary this means that nation states have an obligation to respect, protect and fulfil these rights. Like copyrights, human rights are codified in important international legal instruments having direct effect or having been implemented into national law. Here we should mention the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.
B Developments regarding Copyrights and Human Rights
It appears the initial separation between the domains of copyrights law and human rights law, has changed rather dramatically in at least two respects, both domains being increasingly interrelated in today's world. This is illustrated, first, by the emergence of the idea that intellectual property rights in general and copyrights in particular should also be regarded as human rights. This approach was introduced primarily in order to protect individual producers of cultural information (authors or even creators in the proper sense of the term) against abusive and similar schemes by employers and other exploiters of copyrights. This is illustrated, secondly, by the fact that at the same time (sometimes for concurring purposes, but also with a view to the public interest) human rights began to function as limitations and restrictions on the exercise of intellectual property rights in general and copyrights in particular. This even became the rule for the right to freedom of expression. Understandably, this has established a paradoxical situation that has so far not yet been studied in any depth. The main question here is how to find a proper criterion to evaluate and to balance these two concurring and conflicting human rights claims against each other.
All this is of particular importance with regard to the new human right to culture, i.e. the human right of access to cultural goods and services. Indeed, the actual situation in this respect is rather problematic. First, cultural goods and services are generally protected under copyright law. Second, the very nature of these goods and services is that they function, at the same time, as indicators of a particular culture. Third, today's worldwide commerce in these goods and services may have a devastating effect upon national cultures either because the importation of foreign goods and services ruins the local culture, or exportation vulgarises objects which are highly valued (e.g. religiously) in the domestic culture. At stake here is a possible abuse or misuse of what is called cultural diversity.
Particularly the combination of the continuing process of globalisation and the reigning WTO paradigm of economic and social neoliberalism lies at the hart of this problematic situation. Some of the worrying issues concerning the worldwide exchange of cultural information in a free trade environment are the following:
a. cultural adaptation and/or acculturation by the appropriation of cultural expressions of other cultures.
b. commodification of culture.
c. restrictions on the public domain.
d. pluriformity of media.
e. access to information and the digital divide.
Links Human Rights and Copyright Law
UNESCO Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to
Cyberspace 2003:
http://portal.unesco.org/ci/en/ev.php-URL_ID=13475&URL_DO=DO_TOPIC&URL_SECTION=201.html.
UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
2005:
http://unesdoc.unesco.org/images/0014/001429/142919e.pdf
Draft Provisions on the Protection of Traditional Knowledge (TK) and Draft Provisions on the Protection of Traditional Cultural Expressions/Expressions of Folklore (TCEs):
http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html
COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Thirty-fifth session Geneva, 7-25 November 2005 GENERAL COMMENT No.
17 (2005):
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.GC.17.En?OpenDocument>
WSIS Plan of Action, document WSIS 03/GENEVA/DOC/5-E
12 December 2003:
http://www.itu.int/wsis/docs/geneva/official/poa.html
The Human Rights Paradox in Patent Law
The Human Rights Paradox in Patent Law (and as it relates to the substantive theme Health & Agriculture, addressed in the case study in the afternoon session on the second day of the conference on July 4) may generally be approached from the perspective of the Doha Development Agenda which also addresses the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs 1994) and provides, among others:
‘We stress the importance we attach to implementation and interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner supportive of public health, by promoting both access to existing medicines and research and development into new medicines and, in this connection, are adopting a separate declaration. We instruct the Council for TRIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 of this declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by members pursuant to Article 71.1. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.'
Article 7 and 8 read:
Article 7
‘The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.'
Article 8
‘1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.'
The first impact of human rights on patent rights (i.e. the former rights conceived of as source for the latter rights) in respect of Health & Agriculture pertains to the following. To some, human rights could be pictured as the fundament for the formation and recognition of patent law, and the conveyance and acquisition of patents, in a number of ways.
Before these ways are briefly outlined below, it is necessary to observe that depicting patent law as such – i.e. that it is rooted in human rights law – may be at odds with the common comprehension of the historic developments of this regime. The generally shared understanding of those developments is that, from the early patent days on, patent regimes were established for national economic reasons which stemmed from mercantile motivations – conveyance of patent rights would merely stimulate technological progress within and for the society and country at hand.
Nevertheless, human rights could perhaps be depicted as the basis for patent rights in the following fashions. Arguably, human rights could require that inventors receive proprietary rights for and are enabled to derive economic benefits from their inventive activities (the outcomes of R&D, their inventions). These inventors are all who reach novel, inventive and industrially applicable inventions. Presently, these inventors appear to be predominantly – and insofar as relevant here – chemical, agricultural and pharmaceutical inventors/industries, working from within “economically advanced” and “modern scientific” confinements, i.e. the industrialized world. The patent law system originates in this world – i.e. Europe – and was certainly shaped for the recognition of the interests of its inventors in its economies. Conversely, the patent system shaped those very interests subsequently. Through those interests, the interest of society in, for example, advanced, effective and safe agricultural and pharmaceutical processes and products – technological innovation in the field of food and medicine – is served. The protection of these societal interests through regimes like patent law may find its basis in human rights law (albeit tailored to individuals and groups in particular human rights). Hence, someone that adheres to this view would speak of a right to property and/or a right to a patent, aligned with a right to live, to nutrition, to medicine, to shelter and so forth enabled by technological progress, which is served by patent law. Conversely, not providing or providing less patent protection around the world may oppose the effectuation of these human rights. Looked at broadly, the establishment of exclusive rights regimes, such as patent law, and the requirements for and exclusions from patentability, as they are set forth in TRIPs, the European Patent Convention (EPC 1973), and other national patent regimes (such as that of the US and EPC members), and the manner in which they are applied by many patent offices around the world, certainly serve the safeguarding of this complex of private and public interests.
However, the past decades have shown that many other individuals/groups involved in inventive activities are left out of the workings of these regimes. One could think of (indigenous) traditional knowledge holders, which provide knowledge and biological material for R&D in the agriculture and pharmaceutical sphere – and thus “collaborate” with the so called life sciences industries. One could also think of providers of biological material, such as human genetic material by ethnic groups, families and individuals and plant and animal-related material by biodiversity-rich countries and related collections and institutes (e.g. FAO/CGIAR). Moreover, one could think of the groups of (industrial) scientists that frequently work on (aspects of) inventions across countries and industries and for prolonged periods of time in some sort of implicit collaboration with one another.
Certain human rights may call for acknowledgment (or perhaps even safeguarding and enhancement) of their interests through conveyance of patent rights (and thus alteration of patent law and intellectual property law generally). Articles 17 and 27(2) of the Universal Declaration of Human Rights, article 1 of the First Protocol to Convention for the Protection of Human Rights and Fundamental Freedoms, and article 1 of the International Covenant on Economic, Social and Cultural Rights may, among many other provisions, be called upon to support this position. Some assert that not providing such through patent rights may violate these human rights. Initiatives to rebut the presupposed human rights violations or – different in kind – “asymmetries” between patent law and human rights law pertain to – in no particular order, and based on a host of different (soft) law instruments – development of a sui generis intellectual property law system, amendment of disclosure requirements in patent law – as to include disclosure of origin/source, prior informed consent and benefit sharing in respect of knowledge and biological material –, and a host of proposals to amend patent requirements and rights, such as the exclusive rights conveyed to patentees, and exceptions thereto (e.g. open access mechanisms, collaborative and collective models; heritage approaches; flexible diversity approaches; private law (contractual and torts law approaches (e.g. a “compensatory liability scheme”)). Moreover, human rights pertaining to biological conservation and biomedical ethics and standards may require the non-conveyance of patents in respect of inventions that were reached by breaching these rights. One could think of prior informed consent in respect of bodily material, and the rights pertaining to the freedom, self-possession, and dignity of the human being. Conversely, amending patent law for these purposes may yet again violate the human rights from which patent law may arguably be derived for contemporary purposes and interests. Hence, the challenge of inquiring the relation between human rights law as a basis for patent law and the interests it does or does not presently serve – making such relation explicit or conversely reaching the conclusion that it only exists implicitly or not at all – is central to the conference's first sessions.
The second impact of human rights on patent rights (i.e. human rights conceived of as restrictions to the enforcement of these rights) in respect of the substantive theme Health & Agriculture pertains to the following. Human rights could and/or should perhaps be invoked as restrictions to the enforcement of patent rights in a number of ways. Human rights could perhaps require limitations to the enforcement of patents for reasons of public healthcare. National or international emergency situations could call for a limit on the exclusivity conveyed by the patent, and the full enforcement thereof by the patentee. One could think of health disasters, such as illnesses with epidemic proportions like malaria, HIV, and – perhaps now – the H5N1-virus (“bird flew”). A provision such as article 12 of the International Covenant on Economic, Social and Cultural Rights may perhaps be called upon in this respect. Human rights could arguably also require limitations to the enforcement of patents for reasons of access to R&D and technology, as to allow certain countries and groups to make use of R&D know-how and patented inventions for reasons of national or international economic and scientific development. This could apply to activities in both the agricultural and pharmaceutical fields. Both open source and collaborative and collective models for facilitating access in view of the purported anti-commons within industries and eased and accelerated technology and know-how transfer among industries and countries may be rooted in human rights. Arguably, human rights could require similar limitations in respect of the interests of users of patented inventions and the broader societal interest served by them – e.g. health care providers working with diagnostic tests and pharmaceuticals; farmers (re-) using genetically modified and patented organisms and components (e.g. seeds) and so forth. Moreover, human rights could perhaps also require limited or non-enforcement of inventions deriving from or consisting of human genetic material and/or traditional knowledge and/or implicating the (ecological) environment or public safety (i.e. biotechnology) and/or reached in violation of obligations pertaining to these resources or other interests, such as conservation of cultural and biological diversity, albeit on the condition that no other provisions envisage a positive contribution to these resources/interests/obligations for patentees.
The relation between human rights, patent rights, and exceptions to the conveyance and enforcement thereto already provided within many patent regimes – such as compulsory licenses, research exemptions, exclusions for prevention of situations of national emergency, protection of the environment, ‘ordre public' or morality, will necessarily be touched upon. The same applies to other intellectual proprietary regimes, such as copyright law, which may affect approaches to one or the other issue, when it is cumulatively called upon and/or enforced with patent law (‘convergence'). Given the manner in which the issues concerned touch upon the way in which contemporary right holders (patentees), among which many corporations, conduct their activities in relation to their environment/society, aspects of what has been coined ‘corporate governance' may also be addressed.
All of the aforementioned issues will certainly be addressed throughout the conference, and some of them may be central to the case study presented and discussed in view of the substantive theme Health & Agriculture at the end thereof.
Links Human Rights and Patent Law
Patent Law
WIPO: Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore: www.wipo.int/tk/en/
WIPO: Human rights and intellectual property: http://www.wipo.int/tk/en/hr/
WHO Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH): http://www.who.int/intellectualproperty/en/
WTO TRIPs Gateway: http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
Human rights and intellectual property resources on IPR's online: http://www.iprsonline.org/resources/humanrights.htm
European Patent Office (EPO): www.european-patent-office.org
European Patent Office Staff Union: www.suepo.org
JPO, EPO, USPTO, Trilateral Office: www.jpo.go.jp/saikine/tws/gen-1.htm
Genetic material, biodiversity and exploitation
Convention on Biological Diversity: www.biodiv.org
EC programma Environment, Nature and Biodiversity: http://europa.eu.int/comm/environment/nature/home.htm
EC Biodiversity Clearing House Mechanism: www.biodiversity-chm.eea.eu.int
Genetic Resources Action International: www.grain.org
International Cooperative Biodiversity Groups (ICBG): www.nih.gov/fic/programs/icbg.html
Medicinal Plant Network: www.source.bellanet.org/medplant
Research Foundation for Science, Technology and Ecology: www.wshiva.net
The Honey Bee Network: www.honeybee.org
Third World Network: www.twnside.org.sg
World Resources Institute: www.wri.org
Science and development network: www.scidev.net/index.cfm
Economy and development
Food and Agriculture Organization: www.fao.org
Foreign Trade Information System: www.sice.oas.org
Institute for International Economics: www.iie.com
Organization for Economic Cooperation and Development: www.oecd.org
Worldbank: www.worldbank.org
World Trade Organization: www.wto.org
United Nations Conference on Trade and Development: www.unctad.org
United Nations Development Organization: www.undp.org
Indigenous cultures and traditional knowledge
First Peoples Worldwide: www.firstpeoples.org
Nuffic, Indigenous Knowledge Resources: http://www.nuffic.nl/ik-pages/default.asp
Socio Ambiental: www.socioambiental.org/website/english/index.html
United Nations Educational Cultural and Scientific Organization: www.unesco.org
United Nations Dag Hammarskjöld Library: http://www.un.org/depts/dhl/indigenous/
Ethics
European Group on Ethics in Science and New Technologies: www.europa.eu.int/comm/european_group_ethics
Nuffield Council on Bioethics: www.nuffieldbioethics.org
More Links
http://www.ublad.uu.nl/WebObjects/UOL.woa/1/wa/Ublad/archief?id=1017249 |
