“Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a

legal entity like corporation.”

To understand what is property we must be clear about what is ownership?
Once you acquire the entity through the purchase, gift etc. and you have possession of that entity, you must
have the following three rights to become the owner of that entity in legal sense:
i. Right to use the entity
ii. Right to get the benefit from the entity i.e., through rent
iii. Right to dispose of the entity or the transfer of the entity
When a person enjoys a forementioned rights, he become the owner and the subject matter owned is called
property.
All properties have the value but all the valuable things are not property, for instance respect, honor, dignity,
etc. have vale but they are not property. To be conveyed under the property, an entity must be capable of
iv. Commodification (transformation into the commodity or useful products)
v. Quantification of value (assigning a particular value to it)
vi.Owners
hip What are
right?
Rights are the enforceable entitlements. They are recognized and protected interests, the violation of which is
a wrong. Every right is therefore, obligation of someone else. You have to identify someone against whom
your right is to be enforced. All moral rights are therefore excluded.
What are intellectual rights?
Intellectual property refers to creations of the mind. It broadly means the legal rights which results from
intellectual activity in the industrial, scientific, literacy and artistic fields.
It is the most interesting and most debated aspect of property law. Intellectual property is intangible and
created by intellectual efforts of people having creativity an individual who creates an intellectual property has
a right on such property as in the case of ownership of tangible property.
It is the broader concept that covers the several types of legally recognized rights arising from some type of
intellectual creativity. It can be divided into two broad categories;
vii. Industrial property
viii.Copyri
ght Industrial
property
It includes patents for inventions, trademarks, industrial designs and geographical indications.
Copyrights;
It covers the following
 Films
 Music
 Literary work such as novels, poems & play
 Artistic works like drawings, paintings, photographs & sculptures
 Architectural designs
There are certain rights which are related to copyright. They include the following:
 Rights of performing artists in their performances
Rights of broadcasters in their radio & television
programs What are the intellectual property rights?
“These are rights in the ideal objects, which are distinguished from the material object in which they are
instantiated.”
They allow the creators to benefit from their own works or investment in a creation. These rights have existed
since time immoral. The importance of these rights was recognized in;
 Paris convention for the protection of industrial property 1883
 Berne convention for the protection of literary and artistic works 1886
These rights also recognized under Art 27 of the UDHR which provides for the right to benefit from the
protection of moral and material interests resulting from authorship of scientific, literary resulting or artistic
productions.
Today’s legal system includes the following IP rights;
Patents=Copyrights=Trademark=Industrial designs=Geographical indications =Trade secret
Patents:
A patent is an exclusive right granted for an invention – a product or process – that provides a new way of
doing something or that offers a new technical solution to a problem. It granted effectively grants the inventor
a limited monopoly on the manufacture, a limited monopoly on the manufacture, use or sale of the invention.
It must however, be noted that it is a negative viz. right to exclude others from practicing the patented
invention. It is also pertinent to note that patent protection is available to abstract ideas unless they are
reduced to some type of practical application i.e., to some type of piratical application i.e., a useful,
concrete and tangible result. The inventor is provided monopoly rights for a limited time (20 years), on a
condition that the inventor will publicly disclose the patented invention and practice the patent. After lapse
of 20 years, the innovation becomes part of public domain.
These monopoly rights provide incentives to the individuals by recognizing their creativity ad offering the
possibility of material reward for their marketable inventions. These incentives encourage innovation which
in turn enhances the equality of human life.
Copyrights:
Copyright law grants authors, artists, and other creators’ protection for their literary and artistic creations. It
is granted to be creators of original works. To be eligible for copyrights protection, a creative work must be
forced in a tangible medium of expression.
Ownership of a valid copyright generally protects a copyrights holder against unauthorized copying, display,
distribution, public performance and preparation of derivative infringement works – all of which constitute
copyrights infringement. Others are however, allowed to make “fair use” of the copyrighted material.
It must be noted that ideas as such cannot be copyrighted. It is an author’s or artist’s particular expression of
an idea that is protected by copyright law. It is the particular expression making up a work which is protected
rather than the idea behind it. Copyrights therefore protected only the form or expression of ideas, not the
underlying ideas themselves. While a copyright may be registered to obtain legal advantages, copyright need
not to be registered to exist. Copyright protection automatically attached as soon as a work is fixed in a
tangible
medium of expression. Its registration doesn’t require to own a copyright, but therefore, an author or an artist
can file an infringement suit, the copyright must be registered.
It lasts for the life of the author plus 50 years / 70 years, as it has now become in the E.U and the U.S. it there
ae two or more co-authors, it continues for 50vyears / 70 years beyond the last surviving co-author’s death.
Works covered by copyright include, but are not limited to: novels, newspapers, advertisement, reference
works, databases, computer programs, plays, poems, films, musical compositions, painting, drawings,
photographs, sculptures, architecture, maps, and technical drawings. Many of the aforementioned work are
neither literary but still they are covered under the copyright.
A closely associated field is “related rights” or rights related to copyright, which are similar or identical to
those of copyright. The beneficiaries of related rights are;
 Performers (such as actors and musicians in their performance)
 Producers of phonograms (like compact dieses) in their sound recordings,
 Broadcasting organizations in their radio and television programs.
Purpose
Trademark of protecting copyrights and related rights is to faster human creativity and innovation.
“a trade mark is the distinctive sign that identifies certain goods or services produced or provided by an
individual or a company.”
It is thus a word, phrase, symbol or design used to identify the source of goods or services sold, and to
distinguished them from the goods or services of others.
The system helps consumers to identify a product or service that meets their needs. Purpose of trademark is
therefore quite different from that of patent and copyright law. Instead of seeking to reward creators and
inventors, trademark law is aimed are protecting consumers against sellers who market falsely identified
products misidentified with well-known sources. Trademarks therefore, need not to involve creativity.
Trademark law may be covered under more general law of unfair competition advertising and deceptive
business practices. Trademark law not protects interests of consumers but also has significance for traders. An
ordinary mark or symbol takes lots of efforts and persistent advertising to build it into an asset of prime
value to a business. Brand names like Levis for jeans, Mercedes for cars, Panasonic for televisions were not
built in a day.
If someone other than the trademark owner uses a mark similar to the trademark to identify competing goods,
the trademark owner can sue for trademark infringement. Proof of infringement requires persuading the court
that consumers are likely to be confused with regard to the source of the goods or services. An infringer’s
mark does not need to be identical to the plaintiffs have to show that the infringer deliberately copied the
trademark infringement depends upon showing consumer confusion.
Trademark can be licensed:
For example; in case of franchises of fast-food restaurant such as McDonald’s. However, when a trademark is
licensed to a franchise the registered owner of the mark obliged to make sure that the franchisee/ licensee
carefully meets consumer expectations about the licensee’s goods or services as up to the standard of the
trademark source.
It is important to note that unlike patents and copyrights, trademark protection is not limited to any fixed
period of time. A trademark continues as intellectual property until it loses its distinctiveness. A trademark
may be last of its owner has abandoned it
Industrial designs
An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-
dimensional features such as shape or tow dimensional features such as patterns, lines or color.
Following are some of the articles which have particular industrial designs that need to be protected;
Watches=Cell phones=Jewelry=Electrical appliances=Vehicles =Textile designs=Architectural structures
To be protected, an industrial design must be now and or original. it is important to note that industrial design
of an aesthetic nature and does not protect any technical features of the article to which it is applied.
Geographical indications:
A geographical indication is a sign used on goods that have a specific geographical origin and possess
qualities or a reputation due to that place of origin.
Agricultural products usually have the qualities that derive from their place of production and are influenced
by specific local geographical factors, such as climate and soil. For example
 Basmati rice from India and Pakistan and Bangladesh.
 Darjeeling tea is another example of geographical indication. The name derives its origin from the
Darjeeling district of the west Bengal of India.
It is important to note that the use of the geographical indicators is not limited to the agricultural products.
They may also highlight specific qualities of a product that are due to human factors found in the product’s
place of origin such as specific manufacturing skills. The place of origin may be a village or town, or a
country. For example:
 “Swiss” is used as a geographical indication for products made in Switzerland, more specifically for
watches.
Trade secrets;
A trade secret consists of any confidential formula, device or piece of information which gives its holder a
competitive advantage as long as it remains secret.
Commercially valuable information includes;=Formulas (coca cola, Pepsi)=Compilation of data=Maps not
protectable by the copyright=Software sources code that cannot be disclosed and thus protectable by
patent.=Customers lists=Technical information
The trade secret law seeks to prevent unauthorized use of confidential information acquired through unfair or
commercially unreasonable means.
To be eligible for protection as a trade secret, information must be kept secret. Although trade secret has in
definite term or limited time of protection, a trade secret loses protection when it is no longer secret. Trade
secret lasts as long as the owner maintain the confidentiality of the information, trade secrets are not registered
or validated by a government agency. It deals with the under law of unfair competition, contract and tort.
Employment contracts and contracts to use or evaluate a technology frequently contain confidentiality
provisions requiring non-disclosure and protection of trade secrets.
One disadvantage of relying on trade secret protection is that a competitor who independently invents the
subject of another’s trade secret can be obtained a patent the original inventor (the trade secret holder) from
using the invention.
Sources of intellectual property rights:
If an author’s original work is copied or an inventor’s invention is used without his consent it does not entail
or inventor have no right unless the state has copyright law or patent law to protect the innovator’s rights.
This is a unique feature of most of IP rights. Some aspects of IP rights are covered by laws of unfair
competition or law of contract like trade secrets, trademarks, and industrial designs. But copyrights and
patents enjoy no protection in the absence of statutory laws.
It is therefore the responsibility of government to protect the intellectual property rights. State is obliged to
enact legislations to recognize and protect the rights of innovators.
Why to promote and protect intellectual property?
Few of the numerous reasons as under:
i. The progress and well-being of humanity rest o it’s capacity to create and invent new works in the
areas of technology and culture.
ii. Intellectual property spurs economic growth as it creates new jobs and industries and enhances the
quality and enjoyment of life.
iii. Intellectual property system endeavors to strike a balance between the interests of innovators and
the public interest
iv. Intellectual property laws give statutory expression and protection the moral and economic rights
of creator in their creations.
How does the average person get benefit?
To understand importance of intellectual property protection for a layman, let’s suppose some situations;
i. Without the rewards provided by the patent system researchers and inventors would have little
incentive to continue producing better and more efficient products for consumers.
ii. The multibillion-dollar publishing, recoding, software and film industry would not exist without
copyright protection.
iii. Consumers would have no means to confidently buy products or services without reliable
trademark protection and enforcement mechanisms to discourage counterfeiting and piracy.
An analysis of rationale of IP Rights
Views on intellectual property rights range from complete support to outright appositions to IP rights.
IP advocates or proponents are IP rights or rightful claims to the product at one’s labor. In their view, creation
of the mind is entitled to protection host s tangible preparing. Both are products of one’s labor and one’s
mind. Public good and free rider effects discourage authors and inventors to innovate and create.
Opponents of IP rights, on the other hand see the IP rights as undeserved monopoly privilege and condemn
them.
It must be noted that most of the debate about the IP rights concerns patent and copyright like trademark and
trade secret are less problematic. Therefore, our focus shall be primarily on the legitimacy of patent and
copyrights. We will first analyze arguments of both sides IP proponents and IP opponents and then critically
analyze the suggestions put forward by the IP opponents to replace IP rights with other methods of providing
incentives to innovators:
ANALYSIS OF ARGUMENTS OF IP ADVOCATES:
Arguments of the IP advocates are analyzed as under:
i. IP rights provides the incentive to the innovators:
It provides the prospect of reward. They encourage creative and technological advance by providing increased
incentives to the new ideas. The processes of further inventions may halt without effective incentives.
Inventors must therefore be given confidence that will yield profits on their innovations.
IP rights therefore, arouse the mental power and give them a direction.
CRITICISM
No doubt, IP rights provide author’s artists and inventors the financial incentive to create new ideas. But it
may be interesting to note that most of the great innovators in history operated without benefit copyright
laws. Rather stringent copyright laws would have made their achievements impossible.
Great play rights, like Shakespeare rarely wrote an original plot on their lives; their masterpiece are all
adaptations. And the improvements of stories written by others.
If author write for financial gain, then why hundreds and thousands of articles are uploaded daily onto the
internet by their authors daily and are available to anyone in the world free of cost.
If it argued that publishers don’t see any incentive to publish uncopyrighted works in the absence of
monopoly
rights, why works of previous century (that are in public domain) are published by various authors and are
sold in the market.
Same is argued in the care of inventions that companies see no incentives in manufacturing unpatented
innovations in the absence of monopoly rights. A famous story from Herbert Spencer’s autobiography is
narrated to support this argument.
Herbert Spencer is an English philosopher, scientist engineer and sociologist, invented a new kind of hospital
bed. Out of philanthropic motives, he decided to make his invention a gift to mankind rather than claiming
backfired as no company was willing to manufacture the bed in the absence of a guaranteed monopoly.
This story is used as an argument in favor of patent. But opponents of IP rights use the same story to oppose
the patents. Companies all over the world are constantly producing items like beds, chair, etc. to which no
one holds patent or monopoly right. If refused to manufacture Spenser’s bed patent, system might be the
reason for this because the companies were choosing between producing a commodity in which they would
have a monopoly. So, the existence of patent laws gives the patent commodity an unfair competitive
advantage against its unpatented rival. In a society without patent laws, Spenser’s philanthropic bed would
haveii.been atINCENTIVE
no disadvantage
TOin comparison
USE with other SCARE
AND ALLOCATE products.RESOURCES MORE EFFICENTLY;
IP rights protection not only enable inventors to recover the costs of research and development but also
encourages them to come with the most competitive products because of innovation – enhanced competition.
Innovators therefore, use the scare resources most efficiently to produce innovations with desired new
attributes. This argument is based on the assumption that ideas are scare, just as land resources are.
CRITICISM.
No doubt system of property on land under property law is useful as it creates more efficient use of scare
resources; but more property rights ideas are of a very different nature. Because information is not, technically
speaking, a scarce resource.
Tangible resources in this world are limited. There can be conflict over these limited resources by multiple
human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for
ethical rules to govern its ethical function of property rights is to prevent interpersonal conflict over scarce
resources.
Inter-personal conflict over scarce resources can be prevented by allocation exclusive ownership of resources
to specified individuals. In order for individuals to avoid using property owned by others, property borders
and property rights must be unambiguous and clearly visible and ascertainable. In other words, “good fences
make good neighbors.”
Critics of IPRs believe that this notion of scarcity of resources cannot be applied to ideas and information.
For instance, if Ahmad invents a technique for harvesting cotton, Ali’s harvesting cotton in this way would
not take away the technique with him. Ali’s use of the technique does not exclude Ahmad. There is no need
for exclusivity.
Similarly, if Hamza writes a book and Asad gets it copied, Hamza still has the original tangible book with
him, this is not the case, when we are talking about real tangible resources. For instance, if Kamran has a car
and Mohsin takes his car, Kamran is no more able to use his car because he loses it possession. Ideas
and information are therefor, different form tangible resources. Intellectual rights are therefore not a
consequence
of scarcity; they are deliberate creation of statute law.
Applying the notion of scarcity of resources to ideas has two implications.
FIRSTLY, as discussed earlier, ideas are not scarce in the sense that their use results in physical conflict and
are therefore not proper subject of property rights which are primarily designed to avoid such conflicts.
SECONDLY, if property rights are recognized in non-scarce resources (idea), this necessarily means that
property rights in tangible resources are consequently diminished. Holder of IP rights gets some control over
everyone’s else’s scarce resources.
To take an example, let’s imagine the time when men lived in caves. One bright guy – Let’s call him Smith –
decides to build a cabin on an open field near his crops. Others notice it and find it a good idea. They imitate
Smith and start building their own cabins on their own lands. Now, according to scarcity of resources notion,
Smith should have a right either to prevent others from building cabins on their own land or to charge them a
fee if they copy his idea. Smith thus become a partial owner of the tangible property of others, not because of
his first occupation but because of his idea.
III. IP RIGHTS PROVIDE INCENTIVE TO DISCLOSE IDEAS.
For advancement and innovation, it is important that new ideas become generally known to the society. In the
absence of protection for novel ideas, inventors will keep their inventions secret and they will die with them.
Hence, it is in the interests of society to induce inventors to disclose their secrets for the use of future
generations.
IP rights – by protecting the rights of innovators – help to facilitate the sharing of ideas, creative efforts, and
new technologies nationally and worldwide. IP rights thus foster technological and industrial development
which in turn strengthens the national and global economy.
Granting exclusive rights to inventors for their innovations in term of efficient IPR protection can therefore,
be regarded as a contract the inventor gets from govt. If the inventor agrees to disclose the idea in question.
Thus, an exclusive or monopoly right granted to the innovator should not be regarded as a privilege granted
by govt; but as a bargain between govt and the inventor.
Patents and copyrights, when filled, provide immediate information to rivals who can incorporate such into
their own knowledge bases even though they cannot make direct commercial use of it.
CRITICISM
There are many objections to these arguments some of them are as under;
i. If inventors choose to keep inventions secret, society will not lose much because usually similar
ideas are developed elsewhere due to the social or collective nature of inventions.
ii. It is practically impossible to keep ideas secret so the idea will be revealed even without IP rights.
iii. Purpose of filing patent’s is not to disclose ideas but to exclude others who may be developing
similar ideas. Instead of promoting competition among rivals for inventive progress,
patents may destroy competition and block progress for industrial development and social
welfare because each product includes variety of patents of different types; granting
patent to one who comes first to the patent office excludes other rivals who may be
working on a similar idea owned therefore, patent blocking hampers their progress
instead of promoting industrial development and social welfare.
iv. Moreover, since patents are only granted at a certain stage of an invention, the patent system
encourages secrecy in the development stage. If ideas were disclosed before they had developed
into patentable inventions, ideas would ripen more quickly and would become available for
practical application elsewhere much sooner. Patents therefore deprive society of the benefits that
ANALYSISwould flow from moreOF
OF ARGUMENTS widespread use of the ideas.
IP OPPONENTS;
Arguments of the IP opponents are analyzed as under;
i. THE INFORMATION – BASED ARGUMENT;
Instead of promoting information, IP rights restrict the availability of information. Third world is highly
dependent on transfer of technology and information from the developed world for its industrial and economic
development. Patents hamper transfer of technology to developing world. Copyright laws not only restrict the
availability of information but also conflict with right to education. Educational materials in which authors
may have a material interest are critical to the realization of the human right to education.
IP rights therefore, benefit a few and are against public good and welfare of society.
CRITICISM
One could argue that half of the wealth of the society’s richest, should be redistributed to the poor of the
society to give them relief. Even if stealing some of A’s property and giving it to B increases B’s welfare, this
does not establish that the theft of A’s property is justified. Welfare is not the goal of law; rather the goal is
justice – giving each one his due.
ii. INNOVATIONS ARE MOSTLY CREATION OF COLLECTIVE PROCESS
Innovations are mostly a creation of collective and interrelated work to which many contributions ownership
of innovations might be immoral and against principle of natural rights because no one person or firm is
entitled to claim property rights on innovations that are collectively developed.
Innoventors depend on other’s current or past ideas to bring new inventions. Ideas or information is not a
concrete thing information and ideas without owning other people in whose minds it exists.
The present system of IP protection is such that the person whom hits the right note at the right time gets the
full management reward on the particular invention and the reset participating in the activity at inventing are
left out. Due to the randomness of the system, it is almost impossible for the reward to go to those who
deserve it.
Those who participated in the activity of inventing or their ideas were used by the inventor might have to pay
for using their own ideas when other people have patented them. A patent thus deprives others of what they
had prior to grant of patent. They are deprived of the opportunity to use the same idea to which they
contributed but which the patentee now owns.
There may be instances where two or more people working independently on the same idea my come up with
the same invention independently. But patent law will grant exclusive or monopoly rights to the inventor who
reaches the patent office first; other inventors, despite having developed the idea independently, will be
forbidden to market their invention.
Competition to get the patent office cannot be considered as a kind of commercial competition. Suppose Nasir
and Hamid are competing for the same job. Nasir happens to get hired simply because he reached the
employer office before Hamid. Efforts and credentials of Hamid are not taken into account at all.
Many countries like the U.S have adopted “first to file” system instead of “first to invent”. A person who
conceives an invention may file a patent application.
This system is, however criticized. Small entities are at disadvantage. Multi-national companies prepare and
file patent applications immediately. Small entities, on the contrary, need time to develop and prove
commercialization possibilities of their conceived inventions to attract the necessary financing. If, while an
inventor is exploring commercialization possibilities, another person files an application for the same
invention, the original inventor will lose his patent. First to file system has therefore, further aggravated the
problem of rewarding the deserving persons.
Moreover, investors will rush to file applications on the basis of bare concepts before the inventions are fully
developed. It will decline the quality of applications.
iii. IP RIGHTS OVER-REWARD THE INOOVATORS;
IP rights especially the patent system is inefficient because its over-rewards the patentee. Profits earned during
20 years monopoly period for exceed the research and development costs. If an inventor, then the time
interval before catching up and imitation of the invention should already secure the inventor profit and cost of
research and development. Once the costs of development have been recouped, every single additional
reproduction of intangible ideas is pure profit.
Patent holding companies – having monopoly rights- set extremely high prices to maximize their profits. Their
main argument is to recoup the research and development costs. Opponents of IP rights debunk this argument
and assert that anti-national companies spend merely 1.3% of their revenue on research. Roughly 84% of basic
research- especially during discovery research- is funded by govt, and public sector sources. Fruits of research
of almost entire third world owing to monopoly rights provided by patent system.
Third world countries spend huge amounts from taxpayer’s money to establishment of IP rights owned by
non- nationals. Hardly any patents are owned by nationals of third world countries owing to lack of research
culture in the poorer countries.
CRITICAL ANALYSIS OF SUGGESTIONS PUT FORWARD BY IP OPPONENTS
IP opponents have put forward some suggestions to replace existing. IP rights with alternative arguments. Two
of such suggestions are critically analyzed as under;
i. REWARD SYSTEM TO EXCAHNGE INNNOVATION
Under reward system, innovators are paid for innovations directly by the government. Innovations thus pass
immediately into the public domain. Innovators are rewarded with cash prizes rather than temporary exclusive
property rights. Thus, reward system provides incentives to innovate without creating monopoly power of
intellectual property rights.
This is not new. In 19th century, Robert Andrew Macfie (1822-2893) – basically a Scottish businessman who
became a member of British Parliament in his later life – was an influential supporter of rewards system, but
Europe ultimately embraced patent system.
CRITICISM
A principal difficulty with reward system is the determination of reward and information required for its
determination. Rewards system is therefore extremely difficult to administer. Patent is preferably because it
leaves nothing to any one’s direction, because the reward conferred by patent depends upon the inventions
being found useful, the greater the usefulness, the greater the reward.
ii. CONTRACTUAL AGREMENTS TO PROTECT IDEAS
Many opponents of IP rights typically support only contractual arrangements to protect ideas and innovations.
Instead of monopoly rights for a limited period; ideas and innovations may be protected under private
contracts.
For example,
Akmal writes a book and sells physical copies of it to numerous purchasers B1, B2, B3, B4, -------, BN with a
contractual condition that each buyer B is obliged not to make or sell a copy of the text. Thus, any of the
buyer B becomes liable to A, at least for damages, if he violates the contractual obligation.
CRITICISM;
Patents and copyrights are rights against all third parties, regardless of their consent to a contract. They bind
everyone, even those who don’t have a contract with the right owner.
Patents and copyrights therefore, can’t be protected under contractual obligations because a contract binds
only parties to a contract; it does not bind third parties. A book publisher may be able to contractually
obligate his purchasers to not to copy his book, but he cannot prevent third parties from publishing and
selling it.
INTELECTUAL PROEPRTY RIGHTS VS HUMAN RIGHTS
Intellectual property rights have been a reality in the whole world. Until very recently, there were countries
on the globe that did not have IP regimes. USSR, for instance, had a planned economy and state-controlled
markets. Trademarks did not exist or owned by the state only. Authors and artists were constrained in their
creations because of political reasons. Innovations and inventions were financed solely by the state and
corresponded to, monthly defense, viz. nuclear energy, rockets satellites, submarines e. t. c. other aims were
not given due consideration.
In Europe and other parts of the world, before the advent of copyright and patent laws, authors and inventors
depended on generosity of private patrons or sovereigns for rewards of their labors. It is restricted their ability
to criticized power. Concept of West and was not given due consideration in many countries especially in third
world countries. Advanced contrived had no leverage against countries that had weak or no IP regimes.
WTO and TRIPS agreements brought a substantial change. Now IP protection is covered by the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994(IRIPS). This Agreement was a
product of Uruguay Round of trade talks. IRIPs not only sets minimum standards for national protection of IP
rights but also imposes enforcement measures including the potential for trade sanctions against WTO member
who do not comply with WTO rules and procedures.
Prior to WTO and IRIPS, human rights and intellectual property were strangers, Now the intimate
relationship between the two is being actively studied and even fought ever by states (especially third world
countries) and NGOs in international venues such as;
 World Intellectual Property Organization (WIPO)
 U.N Commission on Human Rights
 World Trade Organization (WHO)
HISTORICAL ISOLATION OF HUMAN RIGHTS AND INTELLECTUAL PROPERTY REGIMES:
It is surprising to note that intellectual property rights and human rights have remained strangers for so long.
Intellectual property remained neglected by human rights treaty bodies, expects and commentators. Similarly,
no references to human rights appear in the major intellectual property treaties such as the Paris Convention
and Berne Convention, or in the more recently adopted IRIPS agreement.
A possible reason for this jurisprudential separation may be that both bodies of law were preoccupied with
more important issues and neither saw the other as aiding or threatening its sphere. conflicts between the two
bodies of law arose when IP protection was linked with trade and WTO provided enforcement measures for
IP protection.
Now, there are two approaches with regards to relationship of IP rights and human rights.
-CONFLICT-
One view is that human rights and IP rights are in fundamental conflict strong intellectual property protection
is incompatible with human rights obligations of states especially in the area of economics, social, and cultural
rights. Threat of economic, social, and cultural rights. Treaty obligations of states under two bodies of law are
in conflict.
--COMPATIBILITY—
Both bodies of law are essentially compatible purpose of intellectual property laws is to provide authors and
inventors a sufficient incentive to innovate on one hand, and to make sure that consuming public has
adequate access to the consuming public has innovators, on the other hand. Purpose of IP laws is therefore,
to strike a balance between incentives on one hand and access on the other hand. There is however, a
difference of opinion over where to strike that balance. Thus, there is a conflict in the compatibility approach
as well.
--RECOGNITION OF THE RIGHT IN THE UDHR—
The UDHR is adopted unanimously by the General Assembly on December 10, 1998. As a General Assembly
action, the UDHR is aspirational or advisory in nature. It does not bind member states of the U.N to
implement it. Over time, however, the UDHR has gradually assumed the status of customary
international law. Nevertheless, some provisions, particularly those dealing with basic civil and political rights
have gained more recognition than the provisions dealing with economic and cultural rights.
While the history of the drafting of the UDHR indicates some reluctance to include protection of moral and
material interests of authors as a human right they were ultimately included in the final draft of UDHR.
Article 27(1) of the UDHR stipulates;
“Everyone has the right of freely to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits”.
Article 27(2) further states;
“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.”
Although intellectual property claims, cultural life and scientific advancement were certainly well discussed
topics prior to 1948, they were not considered to be human rights. These rights were first articulated and
recognized in the UDHR as human rights.
--SPECFICITY OF THE RIGHTS IN THE ICESCR—
As UDHR is aspirational or advisory in nature, there was a move to purpose a binding treaty addressing the
goals stated in the UDHR Moreover, UDHR had created vague rights in order to achieve consensus and to
provide flexibility. The original plan within the United Nations was to follow the UDHR with the adoption of
a series of treaties that would make its provisions more specific and binding on those countries that become
states parties by ratifying these instruments. Because of Cold War hostilities between the Soviet and Capitalist
blocs, the procedure was delayed.
Sub-Committee stated drafting International Covenant on Economic Social and Cultural Rights (ICESCR)
and International Convention on civil and political rights (ICCPR) shortly after the passage of the UDHR.
Drafts of ICESCR and ICCPR were submitted to the General Assembly in 1953. The drafts were, however,
approved in1966 and came into force in 1976. The ICESCR and ICCPR, along with the UDHR, are said to
constitute the Universal Bill of Human Rights. They set minimal standard of decent social and governmental
practice.
Article 15(1) of the ICESCR stipulates;
“The State Parties to the present Covenant recognize the right of everyone;
 To take part in cultural life
 To enjoy the benefits of scientific progress and its applications.
 To benefit from the protection of the moral and material interests resulting from any scientific, literary
or autistics production of which he is the author.”
History of drafting of ICESCR indicates reluctance to include this provision. The moral and material interests,
provision [Article 15(1)] was explicitly excluded from several drafts. This provision was included in the
draft in 1957, three years after the Commission on Human Rights had completed its work. Havet, a
UNESCO representative, stated that its inclusion would help to harmonize national and international
legislation and practice in this field. Opponents of this idea, on the other hand, had a concern that this was
not a question of
fundamental human rights.
Vague language of Article 15 and the lack of attention paid to the issues of any conflict of author’s rights and
other human rights show that drafters of the provision did not anticipate the key role intellectual property
would play in the fields of trade, development or education. The provision has therefore, resulted in two kinds
of conflicts.
--THE INTERNAL CONFLICT—
The internal conflict exists in situations where one document contains two or more provisions that conflict.
For example;
 Article 13 of the ICESCR granting the human right to education appears to conflict with
 Article 15(1)(c) of the same document.
In such situations, states parties are obliged to strike an adequate balance between their obligations. In this
case, the private interests of authors should not be unduly favored and the public interest in enjoying broad
access to their productions should be given due consideration.
Intellectual property is a social product and has a social function. States parties thus a duty to prevent
unreasonably high costs for access to essential medicines plant seeds, school books and learning materials. If
states party unduly favor interests to health, food and education would be undermined.
--THE EXTERNAL CONFLICT—
The external conflict exists in situations where the separate documents have potentially conflicting provisions.
For example;
Right to health and education recognized in human rights to health and education recognized in
human rights instruments is in conflict with monopoly rights provided to innovators under TRIPS Agreement.
Balancing test in such situation included assessment of the importance of interests or values that the
conflicting provisions are intended to protect. In this case, the importance of the interest in education and
health would be highly ranked as compared with monopoly rights of innovators. TRIPS recognizes the
necessity of the
transfer of information
--ECONOMIC GLOBALIZATION AND COMMERCIALIZATION OF SCIENCE; --
Economic globalization and increasing commercialization of science has made it even more difficult to
achieve the balance envisioned in Art. 15(1) of the ICESCR.
Research can be categorized into two types:
 Basic research
 Applied research
Developed countries provided extensive public funding for basic scientific research sharing of findings of
basic research and a public good research scientists preferred dissemination of research results through
publication over filing patents.
In 1980, the adoption of Bayh-Dole Acts in the U.S encouraged private commercial development of publicly
funded research.
Commercialization introduced market considerations of science and economic globalization provided
incentives to be more strategic about investments in science and technology. This change has twofold impact.
 Firstly; It eroded the distinction in many areas of scientific research between basic research (where IP
rules are primarily concerned with the attribution of ideas and findings) and applied research where proprietary
concerns predominate. Thus, corporate investment in scientific research and development-imposed constraints
on science’s tradition of open publication. Science – that basically operates according to a market of its own
and has rules and values different from those of commercial markets – thus became commercialized.
SECONDLY; Globalization encourages privatization of the performance of many services and
diminishes the role of the state. This is problematic for the realization of human rights. The recognition of
human rights confers reciprocal duties and obligations for their realization. Human rights law normally vests
these responsibilities in the state.
Human rights law imposes following three types of obligations on states;
i. THE OBLIGATION TO RESPECT
It requires states to refrain from interfering with enjoyment of specific rights.
ii. THE OBLIGATION TO PROTECT
It requires states to prevent violations of such rights by third parties.
iii. THE OBLIGATION TO FULFILL
It requires states to take appropriate legislation, administrative, budgetary and other measures to the realization
of these rights.
Thus, an ambitious human rights agenda, particularly in relationship of the realization of economic, social and
cultural rights, requires a strong and effective state.
--ALIGNMENT OF IP RIGHTS WITH TRADE—
The progressive alignment of the trade and IP started in the U.S in the 1980 through successive amendments
to section 301 of the Trade Act, section 301 allowed U.S Administration to impose trade-based sanctions on
countries which, in the view of the United State Trade Representative, did not adequately protect IP rights of
the U.S citizens and companies.
Section 301 authorizes USTR to review laws and practices of the US binding partners with regard to
protection of IP rights of U.S citizens and companies and prepare an annual special 301 report on the basis
of which
sanctions can be imposed on the countries that are non-serious in IP protection. USTR is authorized to place
states with inadequate IP protection in “watch list” or “priority watch list” pt “priority foreign country”
category rendering them liable to face import restrictions.
This mechanism provided economic leverage to sped up implementation of IP laws in foreign territories,
which agreed to increase IP protection lest they lose most-favored nation trading status with the U.S.
As alignment of IP with trade worked, the US govt; pushed to link IP and trade rules in the WTO. This
objective was achieved in the Uruguay Round of Multilateral Trade Negotiations, which ended in Marrakesh
in April 1994 with the signing of the Agreement. Establishing the WTO thus IP entered in the house of trade
law at global level.
---TRIPS AGREEMENT---
TRIPS Agreement was adopted in 1994 as part of the WTO. Membership in the WTO required agreeing to
the requirements of TRIPS. TRIPS had a twofold impact.
 FIRSTLY
TRIPS adopted relatively high minimum standards of IP protection for all WTO member regardless of their
level of development. Previously, many third world countries had no or weak IP regimes.
 SECONDLY
Unlike earlier IP agreements, like Paris Convention and Berne Convention, TRIPS has teeth. TRIPS provides
for coercive measures for failure to comply with the minimum standards. Non-compliance with TRIPS can be
challenged through the WTO’s hard-edge dispute settlement system. Rulings of WTO panels and Appellate
Body are baked by the threat of trade sanctions.
---TRANSITIONAL PERIODS---
An extended period of time as granted to the developing and least developed countries to conform to TRIPS
Agreement. An extended period up to January 1,2000 was given to developing countries which they were not
required to confirm to most of the provisions of the TRIPS Agreements. The least developed countries
(LDC’s) were given an initial transition period up to January 1,2006. In November 2005, the WTO member
extension until July 1,2013. A further extension in the deadline until January 1, 2016 was given to the
LDC’s.
The UN human rights turned its attention to TRIPS in 2000, just when transitional periods for developing
countries were expiring. UN Sub-Commission on the Promotion and protection of human rights adopted a
resolution on IP rights a Human right. It stressed that “actual or potential conflicts exists between the
implementation of the TRIPS Agreement and the realization of economic, social and cultural rights.”
Moreover, it was stressed that human rights must be given priority or primacy over economic policies and
agreements. TRIPS and expensive IP rules were criticized.
In the world of TRIPS, the producers and owners of IP products are the only rights holders. Induvial and
groups who consume those products are allocated the inferior status of “users”. A human right approach to IP,
by contrast, of rants these users a status equal to owners or producers of IP products.
The journey doesn’t stop at TRIPS the United States and the Europe countries have negotiated so called
TRIPS-plus bilateral agreements with many developing countries. These treaties impose higher standards of
IP protection than TRIPS requires. The U.N High commissioner for human rights and the WHO have voiced
strong objections to TRIPS-Plus treaties on human rights grounds.
---PATENT AND HUMAN RIGHTS—
Patents are in a potential or actual conflict with right to share benefits of scientific advancements right to
health, right to food, right to development etc.
 Patent and rights to health;
The right to health stems from Art 25 of UDHR which provides that;
“Everyone has the right to a standard of living adequate for health and wellbeing of himself and his family,
including food, clothing, housing and medical care and necessary social services.”
The right is further elaborated in Art 12(1) of ICESCR which provides for;
‘Right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
Patent protection limits the enjoyment of the right to health because of the high costs of patented medicines.
Prior to TRIPS, patent protection for pharmaceuticals was not mandatory. Almost all third world countries
sand even some advanced countries had exempted patent protection for pharmaceuticals in their IP laws.
TRIPS made patent protection mandatory for all products including pharmaceuticals.
Access to drugs campaign started and gained enormous momentum with the out-break of HIV/AIDS that
killed millions of people especially in Africa. Third world countries, NGOs and consumer activists began to
patent the TRIPS agreement. The campaign was successful in naming and shaming powerful pharmaceutical
lobbies and in encouraging poor countries to seek amendments of the TRIPS Agreement.
This campaign led to changes in the TRIPS Agreement as a result of Doha Declaration. It goes beyond the
scope of this chapter to discuss all those developments here. They will be discussed in detail in the chapter on
“Patent versus Access to Drugs.”
--PATENTS AND RIGHT TO FOOD—
Historically, agricultural research was publicly funded and delivered as a public good directly to farmers
through seeds incorporating advanced traits. Public sector institutions and universities were leaders in
developing improved crap verities.
This model has changed dramatically over the last few decades. The results of agricultural research have
increasing been as private goods and protected through IP. A very first initiative in this direction was taken in
the U.S in 1930 with the introduction of the Plant Patent Act (PPA). From the U.S, the idea extended to other
countries.
IP protection for plants got a boost as a result of the Chakrabarty judgment of the U.S Supreme Court in
1980 and adoption of the Utility Patent Act (UPA) in the U.S.
IPRs on plant varieties have been criticized for threatening the enjoying of human right to food Under
Art.27(3) of the TRIPS Agreement, member countries may exclude plant varieties from patent protection.
Some countries like the U.S have, however, gone beyond TRIPS and accept the patentability of plant verities.
--PATENTING GENES—
Prior to 1980, life from were conceptualized or products of nature and were therefore unable to meet
patentability criteria.
These legal standards were overturned in a landmark 1980 U.S A Supreme Court decision. In Diamond V.
Chakrabarty, the Court ruled in a narrow 5-4 decision that a genetically modified bacteria capable of degrading
components of crude oil and thus useful in cleaning up oil spills was patentable. The decision affirmed that
phenomenon of nature in their state are not patentable but goods that through human intervention could be
patented. The court thus made anything under the sun that is made by man to be patentable subject matter.
In making this decision, the Court was motivated by the goal of stimulating the economy through incentive
activity and assumed that the refusal to grant patent in genetically engineered organisms would slow down
the peace of research in this field.
After this decision, the United States Patent and Trademarks office (USPTO) began to grant new kinds of
biotechnology patents. In 1987 USPTO extended patent eligibility to living organisms, including animals. The
following year a Harvard University biologist received a patent for a genetically altered mouse that could be
used as an animal model for studying human cancers. Biology was thus commercialized. Then emerged the
concept of human gene therapy for diagnosis and treatment of genetic diseases, disorder and abnormalities.
Pharmaceutical companies control patents on human genes.
Biological patents are criticized especially on religious grounds that they constitute a threat to the dignity
and sanctity of life. There is a moral need to protect certain items from being treated as commodities and
human begins are obviously one of them.
The concept of inherent dignity of the human person is well established both in the U.S and international law
and provides the foundation for the international human rights instruments. The human body or parts of the
human body per se must be excluded from patentability.
--COPYRIGHTS AND HUMAN RIGHTS—
There are three principal documents that deal with the right to free primary education; the Universal
Declaration of Human Rights (UDHR), the International Covenant on and the Convention on the Rights of
the Child (CRC).
The pertinent provision of the UDHR that relates to education is Article 26 (1) which stipulates 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.”
Right to education recognized in the UDHR was specified in ART. 13 (1) of the ICESCR which stipulates
that;
“The states Parties to the present Covenant recognize the right of every one to education,”
Article 13(2) of the ICESCR further states;
“The state parties to the present Covenant recognize that with a view to achieving the full realization of this
right;
 Primirary education shall be compulsory and available free to all.
 Secondary education in its different forms, including technical and vocational secondary education,
shall be made generally available and accessible to all by every appropriate means, and in particular
by the progressive introduction of free education.
 Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate
means, and in particular means, and in particular by the progressive introduction of free education.”
Similarly, the pertinent language in the CRC 1989 relating to free primary education is Art 28(1) which
provides;
“States parties recognize the right of the child to education, and with a view to achieving this right
progressively and on the basis of equal opportunity, they shall in particular,
 Make primary education compulsory and free to all.”
Access to knowledge (A2k) activists criticize copyrights because educational materials, in which authors may
have a material interest, are critical to the realization of the human right to education. Copyright law hamper
access to instructional materials and have an adverse effect on affordability.
Supporters of copyrights argue that copyrights laws have an exception for research and teaching exception
does not exist in the state in question and no other available source exists. This can happen only in rare cases.
In such cases, there may be a real conflict between copyright and right to education and courts can use the
right to education and/or competition law to force the right holder to license its copyright material.
It is pertinent to note that the exception for teaching purposes is optional end too restrictive.
--TRADEMARKS AND HUMAN RIGHTS: --
Constitutions of almost all states in the world as well as human rights instruments recognize right to freedom
of expression. The right is explicitly recognizing in Article 10(2) of the European Convention on Human
Rights (ECHR).
Sometimes trademarks are denied to applicants on public policy/morality grounds. Such refusal to register
trademarks may contribute an interference with the applicant’s right to freedom of expression recognized in
ECHR and Art 19 of the International Covenant on Civil and Political Right (ICCPR) Commercial speech, for
instance, in the form of advertising or trademark in also an “expression” and enjoys protection.
--CASE LAW –-
i. SCRAGAGE’S TRADEMARK APPLICATION;
In this case, the applicant sought to register the mark EOOK in respect of clothing and footwear. The
Registry’s hearing officer refused the application on the ground that mark consisted exclusively of a word
that was phonetically very similar to the offensive word “FUCK” Registration of this trademark was therefore
contrary to accepted principles of morality.
ii. DISK LEXIE LTD’S APPLICATION
In this case, the application sought to register DICK & FANNY as a trademark for certain classes of goods.
The examiner refused the application on the ground that ‘DICK AND FANNY’ are slang words for the human
reproductive organs and that the use of offend a significant proportion of English-speaking consumers because
of their sexual connection.
iii. BASIC TRADEMARK SA’s APPLICATION
In this case, the applicant sought to register the mark “JESUS” in respect of a wide range of different goods.
The hearing officer refused the application on the ground that JESUS was the ultimate Christian name and its
appropriation for general commercial use would be offensive to believer who believe in the need to respect
the religious sensibilities.
Moreover, a parody of a trademark which leads to likelihood of confusion is usually not permitted. This may
also conflict with the right to freedom of expression. Cases show inconsistency in the application of
trademark laws to parodies. The divide between likelihood of confusion on the one hand and commercial
and non-
commercial use on the other is matter of interpretation with an unpredictable outcome.
CASE LAW:
i. BMW 1986
A trader of joke articles used the trademark of the famous car manufacturer in stickers which invited to sexual
intercourse using work with initial letters of BMW. The court held that the trademark was not infringed
because the use in question was not trademark use; the defendant did not try on an anticompetitive free-ride
on the climate’s reputation, but presented a regular joke which the public recognized as such.
ii. CAMEL 2006
In this case, the defendants used the cigarette trademark CAMEL in an anti-smoking campaign. The
defendants designed posters depicting the famous trademarked CAMEL with a cigarette in its lips that
produced smoke in the shape of a skull and was accompanied b the slogan; “The fag is worse than crossing
the desert -----”
French Supreme Court, reversing the ruling by Paris Court of Appeal, dismissed the trademark infringement
claim in the grounds that the humors use of the mark was on the occasion of a preventive campaign aimed to
adolescents and warned against tobacco combustion which is detrimental to health.
CONCLUSION:
The traditional goal and rationale of IP regimes to provide incentives and rewards to inventors’ researchers,
and authors have been replaced by a new emphasis on the protection of investment. Commercialization and
privatization accelerated by globalization are adversely affecting the very conduct and nature of science and
have negative implications for access to benefits of science.
Camile’ national center les maladies respirators et la tuberculose V. Socie’te’ IT international Gunbtt et al.