by Tanveer Jeewa
Intellectual property law and human rights law are two legal fields which hardly intersected before the 90s. This might come as a surprise since the joining of the two has been intensely debated in this century. Yet, looking at the history of their meeting, one may easily understand why a human rights approach was not a priority for intellectual property experts and vice versa. In the post-world war II era, human rights experts were more focused with establishing international norms preventing gross human rights abuses, while intellectual property rights proponents were primarily focused on broadening the scope of IP protection with a view of rewarding and incentivizing innovative activity. Put differently, these were two rather diverging topics which did not allow for the two fields to merge easily.
Not surprisingly, human rights advocates were the first to take notice of intellectual property rights, due to two significant observations:
- The neglect of the rights of indigenous people, and
- The linking of intellectual property and trade through the TRIPS agreement in the mid 1990.
These two observations alerted human rights proponents to the possibility of human rights being compromised by rights of ‘ownership’ created by intellectual property rights. It is not hard to understand why they would think so when one looks at the ‘triggers’. The first event was due to increasing numbers of misappropriations and exploitation of traditional knowledge by outsiders who would then privatize their output and not share benefits with the originating communities. The second event allowed the UN to respond to queries from the Sub-Commission on Promotion and Protection of Human Rights. The UN’s response allowed for an acknowledgement that intellectual property rights undermined human rights. It required the High Commissioner for Human Rights to analyse TRIPS through the lens of public health and produced an official “statement” by the Committee on Economic, Social and Cultural Rights that “intellectual property regimes must be consistent with the rights in the Covenant”.
Today, human rights are still being hindered by overly strong intellectual property protection, but the intersection of the two fields have given rise to a new brand of intellectual property rights scholars. From the timeline above, it can be seen that proponents of the movement for less intellectual property protection had often a human rights background. Now, an ever-increasing number of organisations and networks have been promoting increased levels of openness and access with regards to educational materials and affordable access to health care.
One thing is for certain: The intersection between IP and human rights is a critical but delicate balance to navigate. This is especially so in the African context and other developing regions where there is both the need to compete in the global knowledge economy and to address critical national development challenges, while also ensuring the protection of a range of human rights under international, regional and national obligations.
With the aim of adding African context and scholarly views from the continent to the debate, the UCT IP Unit launched a few years ago the African Scholars for Knowledge Justice (ASK Justice) project. ASK Justice’s overarching goal is to contribute to positive policy change – specifically, informing and influencing current and future IP law and policy reform processes, from a human rights perspective – with regard to increasing access to knowledge and to medicines in four Southern and East African countries: Botswana, Kenya, South Africa and Uganda. The project seeks to achieve this using a multi-pronged approach involving networking and collaboration, teaching and research, capacity-building, and contributing to public understanding, discourse and debate. As far as ASK Justice’s research is concerned, emphasis is on the impact that human rights have in the drafting and implementing of intellectual property policies in the four study countries. Over the next few weeks and months, we will share here some of ASK Justice’s key outputs. In essence, it seems, we are moving to an era where striking a balance between inventors, creators and the interests of society, is an attractive goal.
“This balance should define the appropriate scope of private monopoly power that gives authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public has adequate access to the fruits of their efforts.” – Laurence R. Helfer