Interdisciplinary Course (Winter session): Introduction to Intellectual Property Rights

SVKM’s NMIMS
Mukesh Patel School of Technology Management &
Engineering

A study on correlation and conflicting relationship of

human rights and intellectual property rights

By

Parth Mansinghka

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ABSTRACT

This paper is written with the motive exploring the relationship and correlation between the
Intellectual property rights and the Human Rights. This is written as a part of research project
where the author aims at discussing in depth about the conflicts and ambiguities th at occur due to
Intellectual property rights in Human Rights regime. The author firmly states that even though
both the rights are of great importance, but if the intellectual property rights conflict and violate
the very fundamental rights of human beings, then they must be taken into consideration and be
interpreted with a new perspective where no Human rights are violated. Human rights are the most
basic rights that are needed for survival, and hence if some law breaks the f undamental rights, that
would be a very terrible situation. The author has discussed two case studies in this paper where
the right to education and right to health were violated. However, in those cases even though
judgements were given by the respective courts, the author feels that certain ambiguities still
remain and have also been discussed as a part of paper by the author.

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TABLE OF CONTENTS

1.0) Introduction............................................................................................................... 4
1.1) Objective ........................................................................................................ 4
1.2) Research Questions ........................................................................................ 4
1.3) Hypothesis...................................................................................................... 5
2.0) Literature review....................................................................................................... 5
3.0) Correlation between intellectual property rights and human rights......................... 8

3.1) Case Studies ................................................................................................. 10

3.1.1) THE RIGHT TO EDUCATION - UNIVERSITY OF OXFORD VS
RAMESHWARI PHOTOCOPY SERVICES .......................................................... 10

3.1.2) THE RIGHT TO HEALTH - NOVARTIS AG V. UNION OF INDIA ......... 11

4.0) Conclusion..................................................................................................................... 14
5.0) References..................................................................................................................... 15

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1.0) INTRODUCTION

Human rights are the rights linked to dignity of a human. These are the rights that are recognized
as the basic rights every human must have. The human rights are given to us simply because we
exist as human beings regardless of our nationality, color, sex, religion, or any other factors.
Beginning from the right to life, to the rights that we need for existing like right to food, education,
health, or work. If these rights are taken away from us that situation cannot be worse than anything
as these rights are the ones that ensure the survival of a human being.

The Intellectual property rights are the rights given to a creator for creating anything that adds
value to the society. These rights give the right to the creator to enjoy the benefits that come from
his work. There are 4 basic types of IPR:

• Patents,
• Copyrights,
• Trademarks, and
• Trade secrets.

In the upcoming sections of introduction, there will be the objective, research questions and
hypotheses formulated.

1.1) OBJECTIVE

The objective of this paper is to see what the correlations are between the human rights and the
intellectual property rights are. We will further discuss the conflicting relationship between Human
rights and Intellectual property rights. Also, throughout this paper, we will discuss the various
cases where the intellectual property rights have violated some or the other human right and see
how they create a situation of ambiguity in today’s world with respect to Human rights.

1.2) RESEARCH QUESTIONS

Following are the research questions that will be discussed in this research paper:

• What is the correlation between Intellectual property rights and human rights?
• What are the laws that relate the Intellectual property rights and human rights?

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• Are Intellectual property rights complementary or conflicting?

• What can be done to resolve the conflicts that are there and what can be done to stop these
conflicts from arising in the future?

1.3) HYPOTHESIS

Following hypotheses have been formulated as a part of the research paper:

1. Null hypothesis: There is no correlation between Intellectual property rights and Human
rights.
Research Hypothesis: There is a significant correlation between Intellectual property
rights and Human rights.
2. Null Hypothesis: Intellectual property rights only compliment the Human rights.
Research Hypothesis: Intellectual property rights not only compliments Human rights, it
also conflicts them.
3. Null Hypothesis: Intellectual property rights do not conflict the Human rights.
Research Hypothesis: Intellectual property rights conflict the Human rights significantly
in some cases.
4. Null Hypothesis: The conflicts cannot be solved between Intellectual property rights and
human rights.
Research Hypothesis: There can be solutions for the conflicts and can stop them from
arriving in future.

2.0) LITERATURE REVIEW

A lot of research has been done by various researchers on this topic. Following are some research
summaries of some research works done worldwide:

1. Patent Rights and Human Rights: Exploring Their Relationships, Hans Morten
Haugen, The Journal of World Intellectual Property (2007) Vol. 10, no. 2, pp. 97-1241

1
Hans Morten Haugen, Patent Rights and Human Rights: Exploring Their Relationships, 10 J. WORLD INTELL.
PROP. 97 (2007).

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In this paper, the author has focused on analyzing the conflicting relationship between the
Right to food and the TRIPS agreement based on how their implementation crossed paths
and conflicted to a great level. The author has assessed the conflict further on the level of
impact they have on each other. The paper further explores the problematic relationship
between ICESCR and TRIPS agreement and how the long term benefits seemed uncertain
and the shot term loss could clearly seen for the underdeveloped and even developing
nations. Then the author further said that both of these were necessary and needed for the
development of society, however there must be a fine balance between them.
2. TRIPS, Human Rights, and the Public Domain, Vandana Shiva, The journal of world
intellectual property, 7(5), 665-674 (2004).2
As a part of this research, the author has described the TRIPS agreement as being the
demand, according to which, countries like India will have to stop the development and
supply of low-cost medicines to their own people and rest of the world’s Underdeveloped
and developing countries. This research article was written in 2004, and hence the author
in this has discussed about the implications of Doha Declaration being undone on January
1 st, 2005. The author also feels that however the Doha Declaration was not the solution to
the problem, it was at least the recognition of the problem. But if the Declaration was also
undone, then that would be a situation to worry about. Further the author feels the need for
good public research and innovation systems, so that the commons of public health and
agriculture are reclaimed.
3. The Relationship and Conflict between Human Rights and Intellectual Property
Rights: A Study, Dr Sanjeev Kumar Tiwari, Indian Journal of Law and Justice 6, no.
1 (March 2015): 25-44 3
In this paper, the author has discussed deeply on the relationship between the Intellectual
property rights and Human rights. The author feels these are two different branches of law
but affect each other so much lately then they were originally meant to. The author has
discussed the arguments and implications of treating IPR as human rights. Also, the author
has broadly discussed the conflicting relation of both the rights. The author feels that the

2
Vandana Shiva, TRIPS, Human Rights and the Public Domain, 7 J. WORLD INTELL. PROP. 665 (2004).
3
Sanjeev Kumar Tiwari, The Relationship and Conflict between Human Rights and Intellectual Property Rights: A
Study, 6 INDIAN J.L. & Just. 25 (2015).

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laws that are made in Intellectual rights regime must be analyzed with human rights
perspective so that both laws are well maintained and do not violate each other.
4. Indigenous peoples' rights at the intersection of human rights and intellectual
property rights, Oguamanam Chidi, Marquette Intellectual Property Law Review 18,
no. 2 (Summer 2014): [v]-296 4
In this paper, the author has focused on the exploration of intersection between IPR and
the Human rights. The author feels that the intersection provides a way to see and revisit
the gaps that are there in both Intellectual property rights and Human rights. The author
believes that the impact of a right should be judged by looking at the people who have
faced the most disadvantages due to it. Hence looking at the places where there are conflicts
is a must to fill the gaps and resolve the conflicts. Author feels that a proper and critical
understanding is needed for the evolution of Indigenous peoples' rights.
5. Conflict between Intellectual Property Rights and Human Rights: A Case Study on
Intangible Cultural Heritage, Paolo D. Farah & Riccardo Tremolada, Oregon Law
Review, 94(1), 125-178.5
This research paper focusses on the matter that whether the current Intellectual property
right laws are able to safeguard and provide a good level of protection for Intangible
Cultural Heritage. The authors feel that different communities have different concerns as
per their culture for their heritage and this makes it very difficult to comprise everything in
law without considering the uniqueness. If due to flaws in the legal protection system, there
is any misuse of the Intangible cultural Heritage, that directly leads to the violation of
human rights and the identity of that particular community. The author feels the need for a
framework for the protection of the Intangible Cultural Heritage, where the system is not
only there for legal protection of the heritage, but also for strengthening the underlying
principles and practices for that particular community.

4
Chidi Oguamanam, Indigenous Peoples' Rights at the Intersection of Human Rights and Intellectual Property
Rights, 18 MARQ. INTELL. PROP. L. REV. [v] (2014).
5
Paolo D. Farah & Riccardo Tremolada, Conflict between Intellectual Property Rights and Human Rights: A Case
Study on Intangible Cultural Heritage, 94 OR. L. REV. 125 (2015).

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3.0) CORRELATION BETWEEN INTELLECTUAL PROPERTY RIGHTS

AND HUMAN RIGHTS

Human rights and Intellectual property rights are the two branches of law that correlate a lot more
than they were actually meant to. These were developed as very distant branches of the legal
system. But today, the Intellectual property rights is actually included with the human rights in
the Universal Declaration of Human Rights (UDHR) and the United Nations Declaration for the
Right of Indigenous People (UNDRIP). The Intellectual property rights cater sometimes as being
complementary to the human rights. They are also referred to as non-fundamental human rights as
the protection of works by creators should be considered as a precondition.

But the major debate over correlation between the two arises due the con flicts that arise between
the two rights. The Intellectual property rights sometimes instead of being the reward, is an
obstacle in the way of things. In the situations, where the Intellectual property rights come in the
way of the fundamental human rights becomes a big problem to worry and needs to be discussed
on. The article 27.1 in UDHR states that:

“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.” 6

Whereas the Article 27.2 of UDHR states that:

“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.”7

After we read these two paragraphs of the same article within UDHR, we can clearly see the
complex, conflicting, contradictory, and confusing relationship between the two rights. This often
leads to a rise in ambiguity in cases where the Intellectual property rights conflict the Human
rights.

6
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 27.1
7
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 27.2

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Although the Intellectual property rights are there to protect the work done by the creators, the
debate usually arises that if the Intellectual property rights eventually threatens the fundamental
human rights of some sections of society then what is the point of the existence of such laws.

The Intellectual property rights conflict various human rights as discussed below:

• The Right to Health: The relationship between the medical patents and the Right to Health
is very apparent. Taking an example of the HIV/AIDS epidemics, a number of drugs to
relieve the disease are protected by patents, hence the patent holders have the control over
the price of drugs. Also, there is a direct relationship between the patents and the access to
drugs. This way the right to health is obstructed by the patent law here as the poor countries
may never get the required drugs on time and within their budget. The pharma companies
often come with argument that the high prices of medicines are because of massive
expenditure on Research and development done for making that medicine, But the fact here
is that they mostly do research and development where there is scope for profit. For
example, if there is a disease spread in a poor country, where they have no money or
resources, then that is not a profitable market for them. That way the poor people are
deprived of their right to health as they don’t have the access to medicines easily.
• The Right to Food: The case is very similar here to the right to Health one. Here also the
people who hold patents in field of genetic engineering have links with the limitations to
the farmers law, the access to food, also a little control over the price as well. This way the
patent law conflicts with the Right to food as well.
• The Right to Education: The copyright law obstructs the right to Education. The
copyright law is actually controlling and depriving the people from harvesting of
knowledge who cannot afford the expensive written texts. This is a strong violation of the
very basic human right to education.

Now, two relevant case studies regarding the right to education and right to health will further be
taken in the research paper.

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3.1) CASE STUDIES

3.1.1) THE RIGHT TO EDUCATION

UNIVERSITY OF OXFORD VS RAMESHWARI PHOTOCOPY SERVICES.8

In 2012, a case was filed against a small photocopying shop- Rameshwari photocopy services by
5 publishers:

• Oxford University Press

• Cambridge university Press, UK
• Cambridge University Press India Pvt. Ltd.
• Taylor & Francis Group, UK
• Taylor & Francis Books India Pvt. Ltd.

The publishers alleged the defendant 1 - Rameshwari photocopy services of infringement of

copyrights. They claimed that the photocopiers were taking parts from textbooks, compiling them
as study materials and then selling them to students as course packs, and this act clearly violates
their rights protected under the section 51 of the Copyrights act. They also claimed that the
defendant 2 – the University of Delhi that the course packs were made as per the syllabus issued
by them. They further claimed that teachers at the University of Delhi were recommending and
encouraging their students to buy the course packs instead of the textbooks, which was not only
illegal but was affecting their sales too. The publishers claimed that this was done by the
defendants just for profit purpose, and hence should be stopped from doing the same.

As a result of all these claims, an injunction order was passed by the Delhi High Court on 17 th
October 2012. It restrained the defendants from photocopying the parts and compiling them into
those course packs.

Finally on December 9, 2016, The Delhi High Court made a landmark judgement and rejected the
claims of the plaintiffs. The court made it clear that the making of course packs from various
textbooks prescribed in syllabus and then distributing the photocopies to the students is not a case
of copyright infringement by virtue of Section 52(1)(i) of the Copyrights Act. Here the compilation

8
University of Oxford V. Rameshwari Photocopy services (2016) 160 DRJ (SN) 678.

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of course packs and then their usage by the students should be considered as a process of
knowledge harvesting.

The ambiguity that I feel here is that on one hand the Article 26, section 1 of UDHR states that:

“Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to all
on the basis of merit. ”9

Whereas, in this case where the course packs developed by the University of Delhi and sold by
Rameshwari services were restrained because they violated the Copyright act. The Copyright act
here is clearly evading the very fundamental human right. The photocopies of parts combined from
various textbooks actually can help students in many ways like they will not have to carry so many
textbooks with them, the people who cannot afford the textbooks also will be able to buy the notes
and gain knowledge from them. Hence, it is a way of harvesting knowledge here.

Also, I feel that it is unfair for authors as well. If no one will buy the text books, just because of
ease of availability and accessibility of the course packs, then the publishers will face losses and
eventually it will be demotivating for the researchers as well, who has done the work with his/her
intellect, but isn’t enjoying the benefits for the same. This kind of ambiguities have to be thought
over and according to the same, certain interpretations should be made of the law, so that no one
is left with the feeling that justice was denied to them.

3.2.2) THE RIGHT TO HEALTH

NOVARTIS AG V. UNION OF INDIA10

In 1998, Novertis International AG filed an application for granting the patent to their anti-cancer
drug ‘GLIVEC’ before the Chennai Indian Patent Office. Glivec is a drug used to treat cancer.
When they filed the application, Only processes and methods were granted patents in India as per
the Section 5 of Patents act, 1970. Later when the section was amended and patents were granted

9
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 26
10
Novartis ag v. Union of India (2013) 6 scc 1

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also for the products in 2005, the application for patent by Norvatis AG was considered. It was
rejected by Madras Patent Office as Glivec failed to satisfy the requirements. Further it was stated
that Glivec was un-patentable under the provision of section 3(d) of Patent Act, 1970 as the said
drug did not exhibit any major changes in therapeutic efficacy over its pre -existing form i.e.,
Zimmermann patent.

After this in 2006, Novertis filed two writ petitions in Madras high Court which appealed:

• That the section-3(d) of Patent Act, 1970 is unconstitutional because it is not in compliance
with TRIPS agreement and also violates Article-14 of Constitution of India.
• against the order passed by Madras Patent Office.

The case was then transferred to IPAB (Intellectual Property Appellant Tribunal) in 2007. IPAB
heard the case and dismissed it again. They stated that even though it passed the requirements of
novelty and non-obviousness, it still could not be patented because it doesn’t go with section 3(d)
of the Patent act, 1970. This judgement was given by IPAB was due to 2 reasons:

• So that big companies don’t always get patents over already patented drugs by making
small changes in it,
• And so that the citizens of India could have easy access to such kinds of life -saving drugs
also at an affordable price.

After this judgement by IPAB, in 2009 Novertis filed Special Leave Petition before the Hon'ble
Supreme court of India against the judgement by IPAB. There were following issues that were
before the Supreme court of India:

1. Is the drug really un-patentable as per section 3(d) of the Patents act?
2. What is the interpretation of the section 3(d) of Patents act?
3. Does the increase in bioavailability qualify as increase in therapeutic efficacy?
4. Is the invention "Beta crystalline form of imatinib mesylate" claimed by Novartis is more
efficacious than the substance that it was derived from i.e., "Imatinib mesylate"?

The Judgement was passed regarding the case in April 2003. The Supreme court rejected the appeal
by Novertis. The Supreme court however upheld that the Beta crystalline form of imatinib
mesylate is a new form of imatinib mesylate. Also, the Supreme court made it very clear that for

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being patented the drug should have considerably high efficacy, and the word efficacy directly
relates to Therapeutic Efficacy only. Regarding the third issue, The Supreme stated that 30%
increase in bioavailability qualifies as increase in therapeutic efficacy under section 3(d) of Patent
Act, 1970 if evidence is provided for the same. Then the supreme court compared the efficacy of
"Beta Crystalline form of Imatinib Mesylate" with "Imatinib Mesylate" with reference to its flow
properties, better thermodynamic stability and lower hygroscopicity, and held that none of these
properties contribute to increase in therapeutic efficacy according to section 3(d) of Patent Act,
1970 and Novartis did not provide any document that shows that the efficacy of "Beta Crystalline
form of Imatinib Mesylate" is more as compared to the efficacy of "Imatinib Mesylate".

In this case the Supreme court’s judgement gave relief to those people who could not afford the
expensive and high-priced medicines. Also, this should be the case in all the developing countries
like India where cheaper rates of medicines and better availability should be done for the people.
However, the same drug is patented in more than 35 countries. The Patent law here is also a
obstruction to a very important human right. The big pharma companies always think of making
profits from the drugs and hence target the markets that are more profitable. Hence the ambiguity
here is that if the big players in the game do not get the patents easily, they won’t even do research
and develop drugs for a disease that is prevailing in a poor country as they don’t have enough
resources to afford the expensive medicines. Then in that case the diseases that needs to be cured
won’t ever have medicines made by the pharma industry. This ambiguity would give rise to a
situation of helplessness amongst the people from poor or developing county as their fundamental
human right to health will be exploited openly there.

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4.0) CONCLUSION

After all this research done on the topic, we can say that the conflicts caused by the intellectual
property need to be addressed because they are threatening the very fundamental human rights.
Both the human rights and Intellectual property rights are needed by the society for its well-being,
hence we need to bring a fine balance between the two of them, so that no rights are violated by
another right only. Also, the human rights are the essential ones needed for the basic existence of
the human being in this world. Hence the forums on Intellectual property rights such as the as the
World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), etc.,
should analyze any new law that they formulate in intellectual rights regime with the human rights
perspective. Also, regarding the current ambiguities regarding the conflicts between the human
rights and intellectual property rights need to be solved by providing the particular interpretations
regarding the same. The ambiguities and conflicts cannot just be ignored because if one law
violates another law, then that would create a very terrible situation.

The Intellectual property rights and human rights, both are essential and very valid at their own
place. These are the rights because people need them, and if they themselves are violated by each
other, then the whole point of having the rights will become baseless. This is the reason why the
laws must be assessed before they are made in order to avoid the confusion and ambiguity . These
rights will lead to social, economic and psychological development of the society if they all
compliment rather than conflicting each other.

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REFERENCES

[1] Hans Morten Haugen, Patent Rights and Human Rights: Exploring Their Relationships, 10 J.
WORLD INTELL. PROP. 97 (2007).

[2] Sanjeev Kumar Tiwari, The Relationship and Conflict between Human Rights and Intellectual
Property Rights: A Study, 6 INDIAN J.L. & Just. 25 (2015).

[3] Paolo D. Farah & Riccardo Tremolada, Conflict between Intellectual Property Rights and
Human Rights: A Case Study on Intangible Cultural Heritage, 94 OR. L. REV. 125 (2015).

[4] Chidi Oguamanam, Indigenous Peoples' Rights at the Intersection of Human Rights and
Intellectual Property Rights, 18 MARQ. INTELL. PROP. L. REV. [v] (2014).

[5] Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era, 64 Fla. L.
Rev. 1045 (2012).

[6] Navin Kumar Jaggi, Human Rights And Intellectual Property Rights, Legal service India,
http://www.legalserviceindia.com/legal/article-877-human-rights-and-intellectual-property-
rights.html

[7] Shilpi Sinha, India: Intellectual Property Rights As ‘Human Rights' An Analysis,
https://www.mondaq.com/india/patent/808140/intellectual-property-rights-as-human-rights39-
an-analysis

[8] Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A
(III), 3 U.N. G.A.O.R. (Resolutions, part 1), U.N. Doc.A/810 (1948).

[9] University of Oxford V. Rameshwari Photocopy services (2016) 160 DRJ (SN) 678.

[10] Jennifer Anna Sellin, Does One Size Fit All? Patents, the Right to Health and Access to
Medicines, Neth Int Law Rev (2015) 62:445–473.

[12] Novartis ag v. Union of India (2013) 6 scc 1

[13] Mohammad Suleman Palwala, A Study On: Novartis AG v. Union Of India,

https://www.mondaq.com/india/patent/826478/a-study-on-novartis-ag-v-union-of-india

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