Intellectual property rights are like any other property right. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).
Over the past five decades since the subject of folklore and the question of its potential legal protection were first raised within the international community, much, without doubt, has been done in this field. Within this period, the tackled issues occupied considerable attention and acquired wide awareness, becoming one of the ‘hot’ law topics of the twenty-first century. While initially the topic was prompted by certain indigenous communities, it swiftly grew to become a widely recognized international problem and has, ever since, been a subject of interest of various local, regional and international governmental and non-governmental groups, among which WIPO lately plays the most important role. As a result, it is clear today, nearly 45 years after the Stockholm Diplomatic Conference for the Revision of the Berne Convention, that the protection of folklore is a global problem which requires international attention and coordinated solutions.
Further, before considering how certain phenomena ought to be protected, it is of fundamental importance to establish what we are contemplating protecting and who should be the right holder of such protection. Finding the appropriate terminology and agreeing on the basic definitions has further implications. For legal purposes, it is necessary to have clear and shared understanding of what is legally meant or not meant by a term or terms selected for protection. Equally important, the core founding definitions further impact the potential protection itself as they establish the context and connotations for understanding and interpreting the scope of potential protection. Hence, choosing the suitable definitions and terminology is one of the fundamental tasks, and certainly one that precedes all consequent debates on the protection itself. Accordingly, describing the subject matter and establishing the adequate definitions has been identified as one of the most important problems in the field. Yet, extraordinary complicated task remains uncompleted.
Over the years, numerous different terms have been considered and used to describe the subject matter, such as ‘folklore’, ‘expressions of folklore’, ‘intangible cultural heritage’, ‘traditional cultural expressions’ (TCEs), ‘traditional knowledge’, ‘indigenous knowledge’ or ‘indigenous heritage’, to mention just a few of the most frequent ones. Despite the lively debate on this topic, no internationally agreed term exists so far, although the two terms most commonly used today are ‘expressions of folklore’ and ‘traditional cultural expressions’ or ‘TCEs’.
With regards to a definition, no internationally agreed consensus on the concept of folklore exists either. And not only that, but the disagreements also concern much more fundamental questions, such as whether ‘broad, non-exhaustive and non-exclusive, definitions’ are indeed necessary at this moment or whether the goal should be more loosely worded terminology and definitions to avoid getting ‘stuck in working on ideal definitions that could take years to adopt’. In that sense, folklore is approached differently in developed countries and developing countries and indigenous groups – the former tend to adopt narrow definitions, viewing folklore as tradition, while the latter tend to prefer broader definitions, viewing folklore as a continuing and constant cultural manifestation.
As a result, human rights bodies are devoting increasing attention to IPR issues, particularly in the way they relate to medicines; digital information; technology transfer; socio-economic and cultural rights; plant varieties; and development. Human rights principles and mechanisms require that IPR rules do not stifle access to essential goods for the welfare of society. In addition, human rights law calls for measures that respect, protect and fulfill the right to education and provide for the right to the enjoyment of the benefits of scientific progress and its applications. In spite of the strong IPR regulation that the TRIPS Agreement prescribes, it recognise key human rights needs by allowing developing countries flexibility in the implementation of the agreement. These flexibilities may be used to protect public health and nutrition, and to promote the public interest in sectors of vital importance.
Initially, some governments were unsure of how to interpret the flexibilities that are written into the TRIPS Agreement would be interpreted, and how far their right to use them would be respected. In 2001, the WTO ministerial conference issued a special declaration – The Doha Declaration on the TRIPS Agreement and public health – stating that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. The WTO ministers underscored countries’ ability to use the flexibilities that are built into the TRIPS Agreement. And they, in addition, extended exemptions on pharmaceutical patent protection for least-developed countries (LDCs) until 2016. On one remaining question, they assigned further work to the TRIPS Council— to sort out how to provide extra flexibility, so that countries unable to produce pharmaceuticals domestically can import patented drugs made under compulsory licensing. A waiver providing this flexibility was agreed on 30 August 2003.
HUMAN RIGHTS PRINCIPLES IN IPR REGULATIONS
• They require that IP rules do not stifle access to essential goods for the welfare of society.
• These include: access to educational materials, affordable medicines and the preservation of the seed sovereignty for small farmers.
• Human rights law calls for measures that respect, protect and fulfil the right to education.
• The right to the enjoyment of the benefits of scientific progress and its applications.
Currently, most debates focus on the place of intellectual property rights in a human rights context and on the impacts of intellectual property rights on human rights. In view of the importance of science and technology in the twenty-first century, it is imperative to move beyond existing intellectual property rights when addressing the issue from a human rights perspective. This is due to the fact that Article 15(1)(c) does not refer to intellectual property rights and to the fact that a human rights perspective cannot be limited to certain types of intellectual contributions. A human rights perspective on traditional knowledge may not necessarily be the most welcome outcome from the point of view of traditional knowledge holders and from the point of view of the promotion of free flows of knowledge. Nevertheless, within a policy context where knowledge is increasingly appropriated by different actors, Article 15(1) constitutes an apt basis for avoiding biopiracy and for introducing positive protection for traditional knowledge holders which is not based on the intellectual property rights model.
Lastly, the international forums on IPR, such as the World Intellectual Property Organisation (WIPO), the World Trade Organisation (WTO), etc., while making new laws on IPR, should analyse the laws with a Human Rights perspective. It is only in such circumstances that the Human Rights Law and IPR law will be able to co-exist with one another properly.
Agnihotri & Jha Associates®