Intellectual Property and Human Rights: Where to after the first WSIS?

Introduction

The concept of intellectual property has never been as controversial as it has become with the rise of the information society. Although the term “information society” itself is not very well defined, it seems to be a common understanding that the impact of new information and communication technologies is profound enough to cause several changes in economic, political, social and cultural dimensions on a more or less global scale. Knowledge and information, both subject to intellectual property legislation, are central to this development, and their access and control has thus gained crucial importance.

This paper explores the interrelationship between intellectual property rights (IPRs) and human rights and identifies several current problems and potential conflicts. Starting from a historical perspective, the development of the modern IPR system and its ideological roots are evaluated against the backdrop of the contemporary societal order, including the human rights system. These findings should then serve as the basis for some considerations on the future development of an international framework for IPRs, which is currently at the crossroads between an extension and a restriction of the level of protection granted. Since the first phase of the World Summit of the Information Society (WSIS) held in Geneva in December 2003 [1] has not given a clear answer to this question, some new directions and compromises are urgently needed.

A brief history of IPRs

The tradition of intellectual property reaches back to ancient times, when the names of authors or inventors were already associated with their works and the term plagiarii – “robbers” – was used for those who falsely pretended authorship. [2] Nonetheless, art and science were judged more by the aesthetic value or usefulness for society they incorporated than by the achievement of the individual, who did therefore not necessarily receive any material or ideational benefit for the work. This community-oriented approach remained the same throughout the middle ages, supported by the idea that all creativity was of divine inspiration, until first privileges granting monopoly rights were issued starting in the fourteenth century. Such privileges, seen as the exclusive rights of monarchs to grant economic benefits for various reasons completely at their discretion, were the precursors of copyright as well as patent or other intellectual property laws, but it took quite some time for these more specific and elaborate systems to develop.

An important element in this process was the invention of the printing press in the middle of the fifteenth century, as this drew attention to the right of ownership of the underlying technologies, as well as the authors’ rights to their more easily duplicated literary works. Combined with a changing political and social environment and a better-educated and more influential bourgeoisie, intellectual property became a better established concept. The Republic of Venice was the first to adopt a patent statute in 1474, followed by the British Statute of Monopolies in 1623. [3] Similarly, copyright legislation emerged at roughly the same time, but in the context of censorship: In 1557 Mary and Phillip issued a charter to the Stationers’ Company, granting it an English monopoly for printing and publishing. In return, the company guaranteed that only texts approved by the Crown could beprinted. Authors were not explicitly mentioned in the charter, but they had to give their written permission to the publisher and were paid for their work. It was not before the 1709 Statute of Anne that the authors’ rights to their creative work were explicitly recognised. [4]

With the introduction of natural rights’ theory [5] , the focus of intellectual property legislation changed from a state-oriented approach -- in which the limited monopolies granted were seen as a right at discretion of the state given to individuals for economic or whatever other reason -- to a perspective emphasising the rights of the author or inventor to his intellectual work. While the idea of a moral right emerging from an act of creativity prevailed in copyright law, patents, with few exceptions, were granted on a more utilitarian basis. Most prominent among these exceptions is the French patent law of 1791. [6]

By the end of the nineteenth century, however, when most European countries had adopted patent legislation, it became obvious that the predominant justification for patents was the assumption that they stimulated the economy by creating incentives for invention. The inventor provided a service to the state and the society, and received temporary revenue from monopoly rights.

Intellectual Property and Human Rights

The human rights system as embodied in the Universal Declaration on Human Rights (UDHR), the International Covenants on Civil and Political Rights (ICCPR) and on Social, Economic and Cultural Rights (ICESCR) and the various regional and thematic instruments can be considered a global agreement of common ideals and shared values, committing states by international customary or treaty law. It has vitally contributed to shaping the world order after the Second World War, thus providing an adequate basis to deal with the far-reaching changes the establishment of the information society is about to bring.

The interrelationship between intellectual property and human rights as laid down in Article 27 of the UDHR and Article 15 of the ICESCR is twofold. Both articles provide for “the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, but at the same time “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”. This embraces the authors’ rights to the protection of their work from unauthorised use as well as the public’s right to benefit from scientific and cultural progress. [7]

With the rise of the information society, the highly sensitive balance between these two human rights must be recovered, considering both economic and social interests. Recent developments, for example in fields such as software patents, database protection, or restrictions of the fair use principle have already shown a tendency towards a higher level of protection, thereby clearly neglecting the benefit of the public. The UN Sub-Commission on the Promotion and Protection of Human Rights has issued a resolution on human rights and intellectual property, stressing the need to better integrate a broad variety of interests and to rebalance economic and social interest. [8]

The information society: IPRs at the crossroads

Today, IPRs represent enormous economic value. [9] With the increasing national and international trade in commodities involving copyright, patent or other forms of protection, it is no longer so much the individual author who enjoys protection, but rather multinational corporations, which become “the global gatekeepers of the world’s cultural heritage”. [10] The IP regime is now partly governed by the World Trade Organisation (WTO) under the Agreement on Trade-Related Intellectual Property Rights (TRIPs), a regime that emphasises economic considerations, while moral and public interest play a less important role.

It seems indeed that intellectual property has come to a crossroad, where commercial interests lobbying for a further enhancement of protection meet a growing civil society movement clearly seeking to advance their vision of the public interest. Given the multiplicity of viewpoints and the dividing line between developing and developed countries on this issue, governments have not yet been able to take a decision on the future direction at the international level. The 2003 WSIS Declaration therefore only states:

At first sight, this is a rather pro-IPRs commitment, emphasising their importance in an information society; it does, however, also refer to knowledge sharing and inclusion, and under the heading of “access to information and knowledge”, [12] the Declaration states:

Indeed, both the notion of the public domain and that of non-proprietary software play a crucial role for the further development of an information society in which knowledge and information are accessible for all, in the South as well as in the North. The first phase of the WSIS has at least given some indications for that, on which the second phase can build.

Conclusions

From the Middle Ages until today, IPRs have a turbulent and controversial history, during which they developed from privileges completely at the disposal of monarchs to moral rights of the individual. From a human rights perspective, the only legitimate end of rights as granted by intellectual property laws is to find a balance between legitimate individual claims of authors or inventors and the progress of society as a whole at reasonable social costs. The implications of the information society for this balance have proven considerable. The ideological foundations of IPRs have been blurred, because they are increasingly attributed to economically powerful corporations and not to the individual author or inventor. Furthermore, they give rise to new ethical questions.

Answers are still hard to come by, but where new models have emerged, as with the open source software movement, those should be promoted along with more traditional approaches. The second phase of the WSIS in 2005 in Tunis should put a greater emphasis on the emerging bias between the ideological foundation and practical implication of intellectual property. It should counteract purely economical claims, which do not contribute to the advancement of society as a whole, by encouraging new, partly non-proprietary approaches. Intellectual property can and must be put into a broader human rights context, including freedom of speech and access to information and knowledge, in order to fulfil the WSIS’s promise of a people-centred, inclusive and development-oriented Information Society. [15]

Footnotes

[1] General information on the WSIS is available at: http://www.itu.org/wsis.

[2] See Gordon Harvey, “Writing with Sources: AGuide for Harvard Students”, available at: http://www.fas.harvard.edu/~expos/sources/.

[3] See Christopher May, “The Venetian Moment: New Technologies, Legal Innovation and the Institutional Origins of Intellectual Property”, Prometheus, Vol. 20, No. 2, 2002, pp. 159-179.

[4] See Ronald V. Bettig, “Critical Perspectives on the History and Philosophy of Copyright”, Critical Studies in Mass Communication, Vol. 9, No. 2, 1992, pp. 131-155, 139.

[5] See Ann Hironaka, “Changing Meanings, Changing Institutions: An Institutional Analysis of Patent Legislation”, Sociological Inquiry, Vol. 72, No. 1, 2002, pp. 108-130, 111.

[6] See Bertrand Lemmenicier; ‘‘Les brevets d’invention et les droits d’auteur’’, available at : http://demlib.com/netlib/netlibre/lemmenicier.htm.

[7] See Thomas A. Lipinski and Johannes J Britz, “Rethinking the ownership of information in the twenty first century: Ethical implications”, Ethics and Information Technology, Issue 2, 2000, pp. 49-71.

[8] Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Intellectual property rights and human rights, ++ UN Doc E/CN.4/Sub.2/Res/2000/7. On this resolution, see also: David Weissbrod and Kell Schoff, “Human Rights Approach to Intellectual Property Protection: The Genesis and Application of Sub-Commission Resolution 2000/7”, ++Minnesota Intellectual Property Review, Vol. 5, No. 1, 2003, pp. 1-46.See Thomas A. Lipinski and Johannes J Britz, “Rethinking the ownership of information in the twenty first century: Ethical implications”, Ethics and Information Technology, Issue 2, 2000, pp. 49-71.

[9] For data, see for example Keith E. Maskus, Intellectual Property Rights in the Global Economy, Institute for International Economics, Washington D.C., 2000.

[10] Cees J. Hamelink, “Human Rights for the Information Society”, in Sean O'Siochru and Bruce Girard, eds, Communicating in an Information Society, UNRISD, Geneva, 2003, pp. 121-163, 145

[11] WSIS-03/GENEVA/DOC/4-E of 12 December 2003, pa

[12] Ibid, para. 24-28; see also para. 10 of the WSIS Plan of Action, WSIS-03/GENEVA/DOC/5-E of 12 December 2003, which sets out the action blueprint to this end.

[13] Ibid, para. 26.

[14] Ibid, para. 27.

[15] See WSIS Declaration of Principles, para. 1.