[A2k] Make the IP system compatible with the Union’s human rights obligations

Ante ante at ffii.org
Thu Sep 27 05:04:56 PDT 2012


Make the IP system compatible with the Union’s human rights obligations
with links:
http://acta.ffii.org/?p=1649

September 27, 2012
By Ante

This is my submission to the "Call for a progressive agenda on creation and 
innovation", launched by the Greens / EFA in the European Parliament. It is 
partly inspired by Peter K. Yu, Intellectual Property and Human Rights in the 
Nonmultilateral Era.

Make the IP system compatible with the Union’s human rights obligations

Human rights protect people. In the EU, fundamental rights protect 
intellectual property (IP) rights holders. Does this make profit maximisation 
equally important as human dignity?

The EU intellectual property (IP) system violates human rights. It denies 
remix artists, independent rediscovery inventors and follow up inventors the 
fruits of their work. It hampers access to knowledge and culture. The Charter 
of Fundamental Rights of the European Union (Charter) elevates this human 
rights violating system to fundamental rights. As a result, the Charter 
violates human rights.

International human rights instruments show us the way out.

Table of contents

1. Legal entities are not protected at the level of human rights
2. Access to knowledge and culture, and the rights of remix artists are 
protected at the level of human rights
3. EU law and the Charter violate human rights obligations
4. Solutions

1. Legal entities are not protected at the level of human rights.

In January 2006, the Committee on Economic, Social and Cultural Rights (CESCR) 
released its authoritative interpretation of article 15(1)(c) of the UN 
International Covenant on Economic, Social and Cultural Rights (ICESCR). 
Paragraph 7 reads:

    "The Committee considers that only the "author", namely the creator, 
whether man or woman, individual or group of individuals, of scientific, 
literary or artistic productions, such as, inter alia, writers and artists, 
can be the beneficiary of the protection of article 15, paragraph 1 (c). This 
follows from the words "everyone", "he" and "author", which indicate that the 
drafters of that article seemed to have believed authors of scientific, 
literary or artistic productions to be natural persons, without at that time 
realizing that they could also be groups of individuals. Under the existing 
international treaty protection regimes, legal entities are included among the 
holders of intellectual property rights. However, as noted above, their 
entitlements, because of their different nature, are not protected at the 
level of human rights." 

2. Access to knowledge and culture and the rights of remix artists are 
protected at the level of human rights

Universal Declaration of Human Rights (UDHR) 27(1) and ICESCR article 15.1 (a) 
and (b), recognize the right of everyone to take part in cultural life; and to 
enjoy the benefits of scientific progress and its applications.

Under UDHR 27(2) and ICESCR 15(1)(c), artists have the rights to benefit from 
the protection of the moral and material interests resulting from any 
scientific, literary or artistic production of which he is the author.

Both UDHR 27(2) and ICESCR article 15(1)(c) do not exclude any author 
("everyone"). They can only be interpreted as including remix artists. CESCR 
General Comment No. 17 clarifies with "creations of the human mind, that is to 
‘scientific productions’, such as scientific publications and innovations, 
including knowledge, innovations" that inventors are included. The General 
Comment mentions inventors in paragraph 12. Then "everyone" can only be 
interpreted as including all inventors, including independent rediscovery 
inventors and follow up inventors.

3. EU law and the Charter violate human rights obligations

The EU IP system violates human rights. The system denies remix artists 
(copyright) and independent rediscovery inventors and follow up inventors 
(patent law) their human rights. It harms citizens’ access to knowledge and 
culture – a human right. It gives strong protection to legal entities (not 
protected at human rights level), to the detriment of citizens’ and artists’ 
rights.

The Charter elevates this human rights violating system to fundamental rights. 
Charter article 17.2 reads: "Intellectual property shall be protected". This 
is conceptually wrong, IP rights are heavily lobbied rule based privileges. 
Many people regard the IP system as broken, or even oppressive. IP rights can 
not be regarded as jus cogens.

The Charter’s preamble mentions "common values", a "spiritual and moral 
heritage" and "indivisible, universal values" and placing "the individual at 
the heart of its activities". Charter article 17.2 is not compatible with the 
Charter’s preamble and undermines the credibility of the Charter.

4. Solutions

In "Intellectual Property and Human Rights in the Nonmultilateral Era", Peter 
K. Yu suggests adjustments, for instance exceptions and limitations, uphold 
TRIPS flexibilities, compulsory licensing, parallel importation, government 
use and just remuneration.

I note that, as both are human rights, the rights of authors and remix authors 
have to be balanced. There is no room for injunctions and high damages. The 
same is true for patent right holders and follow up inventors. And likewise, 
citizens’ access to knowledge and culture rights have to be balanced with the 
rights of authors.

The rights of authors and citizens are stronger than the rights of legal 
entities. Humans have human rights, legal entities don’t.

Charter article 17.2 has to be interpreted in the light of the ICESCR, 
otherwise, article 17.2 is void.

Links

Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era
http://ssrn.com/abstract=1926102

General Comment 17
http://sim.law.uu.nl/SIM/CaseLaw/Gen_Com.nsf/6a53968e2906c409c12568870055fbbe/4ed4ccda24ed2f11c12570cf0044d5ee?OpenDocument





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