By Rebecca Mouy
In a seminar on Wednesday 11 May at the Melbourne Law School, Professors Larry Helfer and Graeme Austin discussed their recently published book Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University Press, New York, 2011).
The book explores the conflation of two areas of law that have been historically isolated – human rights and IP. The authors note that governments, policymakers and activist communities often raise human rights concerns such as freedom of expression, public health, education, privacy, agriculture and the rights of indigenous people to oppose the expansion of IP rights. On the other hand, creators and owners of intellectual property argue that there are human rights justifications for expanding legal protections.
Helfer and Austin drew our attention to the Universal Declaration of Human Rights as a textual basis for the intersection of human rights and IP. Article 27 reads:
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) 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.
Helfer outlined factors that have led to increased engagement between the two traditionally distinct legal regimes:
● expansion in IP law;
● increased attention to indigenous IP rights;
● inclusion of IP rights in the TRIPS Agreement and implementation of treaties that exceed TRIPS standards;
● growing recognition of human rights obligations of multinational corporations; and
● multinational corporations’ attempts to invoke IP rights.
Helfer stated that increased engagement between the two legal regimes is inevitable. Areas where we already see conflation are: patents and the right to life; plant breeders’ rights and the obligation to provide adequate food; and trade marks and freedom of expression. It follows, in the authors’ opinion, that the more pressing concern is how the two legal regimes ought to interact.
The authors set out to develop a normative framework in which to approach the interface. Helfer discussed two emerging approaches. The approach asserted by the UN is that of ‘fundamental conflict’. This approach conceives of the two regimes as fundamentally incompatible, and asserts that human rights should take primacy over IP. It has been applied in the context of the global fight against HIV aids to argue that patent rights must be abrogated in order to prevent the deaths of millions of people. Helfer argues that the two drawbacks of this approach are that it is static rather than flexible, and that it lessens incentives to innovate.
Another approach is that of ‘co-existence’. The primary concern under this approach is how to strike the appropriate balance in order to encourage innovation as well as protect human rights. Under this approach, certain policy levers are enacted that favour access to scientific innovations, such as the Doha Declaration 2001 and compulsory licensing in Thailand and Brazil.
Helfer and Austin advocate a normative framework that moves beyond ‘conflict’ and ‘co-existence’ to a pragmatic approach based on regulatory reform. Under this approach, policymakers would ideally identify basic human rights and work backwards to develop government policies to achieve these outcomes. Such government policies would aim to harness the market (ie protect IP rights) in order to achieve human rights outcomes.
Austin spoke about the circumstances that sparked his interest in the interface of human rights and IP including a growing sense in the community that the IP regime was too strong, lasted too long and inappropriately restricted human rights. However, he felt that suggestions to constrain the IP regime were crude, impractical and inconsistent with public international law obligations. Austin sought to develop a legal and normative basis for constraining IP that was rooted in sources of international law, for example international humanitarian law.
Austin also discussed some of the complexities of engaging with human rights and IP. In particular he wanted to resist viewing the two regimes as separate. Human rights, he said, should not be regarded as ‘pushing back’ against IP. He raised the example of copyright in educational textbooks and the right to education. Austin thinks that it is ‘facile’ to say that copyright rights should give way to the right to education, and that there needs to be a very careful balance between incentives and access. Austin pointed out that there is nothing in theory in the copyright regime that prevents the creation of substitute education materials. However, if other people do not have the capacity to take advantage of the structural regime of copyright law then the copyright regime is much stronger in practice than in theory.
Associate Professor Shaun McVeigh provided commentary at the end of the seminar. He commended the authors’ treatment of international law as separate bodies and institutions, rather than an overarching or singular regime. He noted that the authors had avoided the assumption that human rights and IP are necessarily reconcilable. Finally he made reference to the pragmatic approach taken in the book, where emphasis was placed on jurists’ and students’ duties to engage with the interface of human rights and IP. Professor McVeigh also put forward three provocations:
● How do the authors account for multiplicity of international laws, and in particular the treatment of international law by indigenous communities as opposed to the traditional European conception of international law?
● What are the responsibilities of office of a person wishing to combine the areas of human rights and IP? Are diplomacy and policy the only ways to approach the interface?
● Are the authors motivated by a desire to bring some of the technicality and drafting of IP law to human rights law?
Rebecca Mouy is an LLB candidate at the University of Melbourne