Navigating The Interface Between Intellectual Property And Human Rights

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:39:40.736181+00:00

Updated: 2026-08-26T17:10:21.053+00:00

NAVIGATING THE INTERFACE BETWEEN

INTELLECTUAL PROPERTY AND HUMAN RIGHTS

Nishimoni Saikia, LLM, Gujarat National Law University

1. INTRODUCTION

The area of interface between IPR and HR is amongst growing importance in the modern world landscape. Even though IPR and HR frameworks pursue the aim of social welfare, they do so via different, sometimes conflicting paths. Individual ownership has played a significant role in IP regimes where exclusive rights for creators serve as incentives for innovation and creativity. On the other hand, the human rights framework emphasizes the requirement for universal access to the basic goods and services with which, in the process of its implementation, sometimes come into conflict with IPR like access to healthcare, education, and participation in culture . Most of this conflict between the two frameworks shows up in discussions over access to pharmaceuticals, educational tools, and technology.

For instance, the TRIPS Agreement has been criticized as one that imperils patent protections that undermine the "right to health" through its limitation of access to affordably priced medicines. Similarly, copyright laws have an essential role in making the occurrence of creative expression an existence that can deny public access to knowledge about matters of collective value and prejudice the right to education and participation in cultural life. This paper seeks to explore the theoretical underpinnings and practical implications of IPR and its interface with HR. It looks into the central areas of overlap and clash and further celebrates the importance of state intervention in the balancing process of the two approaches such that intellectual property protection does not strip of its essence the very ideas it tries to protect.

The study will, therefore, make a comparative analysis that depicts how IPR intrinsically is individualistic and negative rights compared to the collective and positive character of human rights. Therefore, it aims to be able to present recommendations toward harmonizing IPR and HR toward a fairer balance between innovation and access.

2. SCHOOLS OF THOUGHTS ON IPR VS HUMAN RIGHTS

There exist diverse schools of thought regarding the complex relationship between IPR and Human Rights. According to some, these two frameworks fundamentally oppose each other while others perceive them as complementing one another in different ways toward societal development. Below are analyses of the various conflicting perspectives:

A. Conflict-based Perspective

This school of thought posits that IPR often denies individuals access to basic resources, thus undermining the achievement of significant human rights. For instance, patents may hold a monopoly on life-saving medicines, which may take crucial drugs out of reach for many, yet this is a violation of the right to health under the Article 12 of ICESCR1. Copyright may also abridge the right to education in that it limits the ability to distribute low-cost textbooks. Proponents of this school claim that the balance of IP laws has to be rebalanced with the end of further accessibility offered, including in fields such as public health and education, when such uses are often referred to in the language of the Doha Declaration on TRIPS and Public Health of 2001, as a precedent on flexibility.2

B. Complementary Approach

Advocates of this approach argue that IPR and HR could complement each other to further achieve the welfare of society. They claim that IPR fosters innovation and artistic ingenuity, which sometimes will have a net enabling effect on human rights; for example, new health care technologies and cultural achievements. For example, Article 15(1)(c) of the ICESCR recognizes the rights of creators to benefit from the protection of their moral and material interests, which states that IPR is compatible with human rights in respect of cultural participation and scientific progress. 1 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) Art 12.

2 Doha Declaration on the TRIPS Agreement and Public Health (adopted 14 November 2001)

WT/MIN(01)/DEC/2.

C. Development-oriented Perspective

This thinking puts emphasis both on IPR as well as HR as a means of promoting sustainable development. IPR is recognized as a means of encouraging economic growth which, in turn may also be supportive of realizing socio-economic rights. However, scholars in this camp also remind that, owing to balance IP regimes which respect public interest, especially among the developing countries. Amartya Sen capability approach to development, in which it is linked with the possibility of exercising fundamental freedoms and states that knowledge and health care access are not possible in the absence of development3. From this point, it means the IP regimes must be adaptive for the innovation to become a tool for development in capabilities and human dignity.

D. Critical Legal Studies (CLS) Approach

One criticism by the CLS school condemns today's global IP regime as a form of neoliberal hegemony, thereby deepening inequalities further, both within and between countries. In this view, robust IP laws can be applied in such a way that the more powerful countries and corporate entities are strengthened, while the less powerful countries are further marginalized to the periphery and further extend the deprivation of the already powerless. Scholars who argue this way put forward the argument that there needs to be an alteration in the IP framework along the lines of the principles of distributive justice whereby innovation's benefits equitably trickle down throughout society4. All these different perspectives only underscore the complexity of the relationship between IPR and HR, providing the necessary backdrop to explore more deeply into their theoretical and practical dimensions.

Here, then follow some exploration about the nature and theories underlying both frameworks further fleshing out what seems to be the mix of tensions and synergies between them.

3 Amartya Sen, Development as Freedom (OUP 1999).

4 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy

(Princeton University Press 2016).

3. NATURE OF HUMAN RIGHTS

Human rights are those rights that belong to all individuals, are universal in application and based on human dignity. They are inalienable. Human rights is written in several international legal frameworks, the most prominent including the Universal Declaration of Human Rights (UDHR) in 1948, the International Covenant on Civil and Political Rights (ICCPR) in 1966, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966. Universal, Inalienable, and Indivisible Nature Universality: All people, irrespective of their nationality, ethnic, or any social group and their status, are equal in terms of human rights. This principle bases the commitment on shared equality and justice, where states recognize these rights as inherent in all human beings.

Inalienability: Nobody may waive his or her basic human rights, and no state may derogate them permanently without violating international law. Not even in a state of emergency may the ICCPR permit derogations from some fundamental rights, for instance the right to life or prohibition of torture, as stipulated under Article 4. 5 Indivisibility and Interdependence: Human rights- for example, freedom of speech, right to life, right to education, etc. - are each indispensable and complementary to the other. The fulfilment of one right often depends on the enjoyment of others, reflecting the holistic nature of human dignity. Categories of Human Rights Civil and Political Rights (First Generation Rights): These rights protect individual liberties as well as place a citizen against the interfering hand of the state, such as a fair trial, right to freedom of speech, right to privacy, etc.

6 Economic, Social, and Cultural Rights (Second Generation Rights): They promote access to resources and opportunities that are necessary to human development. It includes the right of

5 ICCPR (n 1) Art 4.

6 ICCPR (n 1) arts 9–14.

education, right to healthcare, and an adequate standard of living.7 Collective rights (Third Generation Rights): These rights lie beyond the individual boundaries or persons and go to communities or groups, as exemplified by the right to self-determination, and the right to cultural heritage. This comes at a time when group identity has been increasingly recognized in human dignity. Moral and legal aspects of human rights make their significance in equality and justice overwhelmingly important. Yet the enforcing of these rights invokes active involvement from states, capital resources, and sensitive treading against other competing priorities such as intellectual property regimes. This section turns to the justificatory theories underlying the existence and protection of human rights.

4. INTELLECTUAL PROPERTY RIGHTS: MEANING & NATURE

What is Intellectual Property Right? Intellectual Property is a combination of human intellect, skill and labour. The Intellectual Property Rights (IPRs) can be treated as an incentive for research and development and a prize for intellectual efforts, since IPRs act as a reward for time, energy, and financial inputs utilized. Such a reward produces creators temporary rights over the society due to their intellectual contribution. Basically, IPRs are considered a limited period monopoly over the fruits of creative endeavor. IPRs, in the global economy of today, sit as the forefront of driving economic growth and are now considered as giving way to what has come to be known as the "knowledge economy.

" The proliferative trend of intellectual property law is allied with the increasing significance of science, technology, and arts, for these are protected to facilitate growth in those spheres. IPRs touch upon the divergent streams of law, such as trade, commerce, competition, pharmaceutical and medical, and human rights; these illustrate how intellectual property is at the intersection of other legal and policy settings. Nature of Intellectual Property Rights Nature of intellectual property is “intangible having tangible expression”. IPR protects intangible creations through exclusive, territorial, and time-limited rights, balancing private

7 ICESCR (n 1) arts 12–13.

interests and public welfare.

1. Exclusivity: Creators can prevent others from using their work without permission.8

2. Territoriality: Rights are enforced within specific jurisdictions, requiring

international treaties for harmonization.

3. Temporality: Rights expire after a set period, allowing creations to enter the public

domain.

4. Negative Right: IPR gives the right to exclude others, not necessarily the right to use

the creation.

5. Economic Value: IP is an asset, often traded or licensed, contributing to economic

development.

6. Individualism: IPR favors individual ownership, sometimes conflicting with

collective cultural knowledge. 9 IPRs are granted to innovations or creations that have practical utility or commercial value. The intellectual property framework places emphasis on the fact that innovation must go beyond the mere domain of academic interest and also have a contribution to economic and industrial development for it to be eligible for protection. Protection of intellectual property rights is economically driven rather than by scientific or technological considerations alone. Technological and scientific innovations in most intellectual properties form the essence; in themselves, they are hardly enough without supporting economic value. Thus, to obtain protection under the regime of intellectual property, scientific or technological progress must have commercial potential.

Difference between Human Rights and Intellectual Property Rights Human rights and intellectual property rights are considered to be fundamentally different from each other in many ways that are considered very important. Human rights are basic rights that

8 Lionel Bently and Brad Sherman, Intellectual Property Law (5th edn, OUP 2018) 104.

9 Ruth L Gana, ‘The Myth of Development, the Progress of Rights: Human Rights to Intellectual Property and Development’ (1995) 18 BJIL 5, 13.

are a part of every individual, regardless of nationality, sex, or religion. These are intended to maintain the dignity, freedom, and equality of every human being, so that inalienable needs and rights are fulfilled. Intellectual property rights, on the other hand, are legal rights conferred upon a creator, affording sole ownership of inventions, literary works, and symbols. While human rights are inherent and universal, or applicable to all individuals by virtue of being human, IPRs are statutory and artificial. They are enforced through the laws of the jurisdiction, which greatly vary from one place to another. Human rights are very broad and encompass civil, political, economic, social, and cultural rights, including the right to life, freedom of speech, and right to education.

IPR is specifically on rights concerning creative and intellectual activities like copyrights, patents, trademarks, and trade secrets. In fact, human rights are generally non-transitory; they do not have a time bar but exist permanently, whereas IPRs are limited by time. In fact, most have a specific term. For example, copyrights subsist for a lifetime plus a certain number of years after the death of the author, and patents exist for 20 years. Enforcement mechanisms are also quite different. Human rights are protected through international treaties, national law, and judicial systems quite often requiring active measures from the states for protection. IPRs, on the other hand, are enforced through national laws. Legal action may be taken by the rights holders to collect remedy from violations.

Besides, while human rights are universally recognized and applicable to all over the world based on declarations like the Universal Declaration of Human Rights, the recognition and protection accorded to IPRs vary considerably across jurisdictions, creating potential inconsistencies in enforcement. The impacts of such rights on society also differ. It is primarily social justice, equality, and freedom that human rights seek to achieve as inspirational tenets for democratic governance and peace. On the other hand, IPRs promote economic development and innovation but at the expense of monopolies and restricted access to knowledge and cultural resources. Conflicts will arise in such circumstances, especially when IPR rights or protections prevent access to information, health services, or education.

This is so because patented medicine may make medicines inaccessible and less affordable; restrictive enforcement of IPRs may, indeed, muzzles freedom of expression or a person's access to knowledge. Therefore, it is important to

balance human rights with IPR in order to nurture simultaneously innovation and well-being among people and communities.

5. CONFLICTS AND TENSIONS BETWEEN IP AND HUMAN RIGHTS

Conflicts between human rights and IPRs arise when enforcement of one set of rights can thwart enjoyment of another. Such a notable example arises between IPRs such as copyrights and trademarks and freedom of expression. The copyright laws impose certain restrictions regarding the use of protected contents, thus limiting artistic or expressive freedom. For example, copyright laws may impose limitations on how copyrighted content is used, which could restrict artistic or literary expression. A. Pharmaceutical Patents and the Right to Health

Pharmaceutical patents provide producers with the exclusivity to manufacture and sell drugs, resulting in the actual monopolization of the drugs. The problem of this conflict is very evident in developing countries, wherein patented drugs for potentially deadly diseases like HIV/AIDS are beyond reach due to their prices. Consequently, these patents bar access to drugs considered essential for patients; hence, they restrict peoples' right to health. The Doha Declaration recognized the imperative to make public health subservient to intellectual property rights in pronouncing that TRIPS "can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.

"10 The availability of compulsory licensing—through which governments can permit the production of patented medicines without the consent of the patent owner for the greater good—also reflects this effort to bring IP protection in line with the right to health, as shown in the approach made by India in the case of Natco Pharma v Bayer Corporation. 11 B. Copyright and the Right to Education and Knowledge:

Copyright statutes have granted the rights of copyright to creators, thereby prohibiting

10 Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc WT/MIN(01)/DEC/2 (14

November 2001).

11 Natco Pharma Ltd v Bayer Corporation (2013) CS (OS) No 1090/2011 (Delhi HC).

unauthorized copying and distribution. However, such protection ordinarily collides with the right to knowledge and education. Exceptions and limitations to copyright-including fair use provisions-haltingly provide solutions by allowing limited reproduction of copyrighted material for educational purposes. But this tension between encouraging creativity through copyright and ensuring fair access to knowledge is a persistent tension. C. Traditional Knowledge and Indigenous Rights

Another conflicted area is, therefore, found in the misappropriation of traditional knowledge (TK) and indigenous cultural expressions in IP laws. TK often comprises the collective knowledge that indigenous peoples develop over generations, and this easily becomes exploitable when others can receive patents or copyrights over them without authorization or through affected benefit-sharing agreements. This has become famously known as biopiracy, demolishing the human rights of indigenous peoples - their right to cultural identity and participation. International initiatives include WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore towards developing legal instruments to protect TK while being sensitive to the interests of indigenous peoples.

12 Those remain, however, the more major challenges in trying to align the IP framework with collective ownership models of indigenous knowledge systems. D. Right to Privacy

Ensuring intellectual property rights is intimately linked with the gathering and processing of personal data in the digital age that seems to contravene privacy. For instance, regulating online conduct and activity by checking copyright infringements does infringe on privacy. For instance, biometric data, such as through facial recognition, can be used for IP protection purposes but poses grave privacy concerns if not regulated aptly. Furthermore, the systems under IoT, increasingly being used to manage intellectual properties, generate humongous 12 WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), ‘Background Brief No 8: Traditional Knowledge’ (2010) https://www.wipo.int accessed 13 October 2024.

amounts of personal data, thereby making it difficult to prevent privacy violations. Surveillance techniques have also sparked controversy, such as internet traffic recording for copyright enforcement, if the latter technique lacks transparency or proportionality. In case of these facts, there must be a balance between intellectual property rights and right to privacy.

6. SYNERGIES BETWEEN INTELLECTUAL PROPERTY AND HUMAN RIGHTS

Even with the conflicts, IPs and human rights are sometimes complementary frameworks that complement rather than conflict. Both frameworks serve the purpose of advancing human creativity, innovation, and development towards better social and economic well-being. This chapter identifies how IP can support human rights objectives. A. Promoting Innovation for Public Good

IP promotes innovation because through it, creators and inventors will have exclusive rights, and consequently, goods and technologies that would benefit public welfare are produced. Pharmaceutical patents, for instance, had allowed the development and production of lifesaving medicines and vaccines to advance the right to health. Specifically for the COVID-19 pandemic, IP frameworks enabled rapid collaboration and innovation in vaccine development, speaking to intellectual property's potential for public health purposes.1314 More importantly, licensing agreements like voluntary licensing allow pharmaceutical companies to share technology with other manufacturers to ensure broad access to essential medicines. B. Protection of Cultural Rights and Heritage

IP law also protects cultural expressions and the right to cultural identity. Copyright and trademark do indeed protect artists, authors, and indigenous peoples' works from being exploited and thus safeguard them. For example, there is geographical indication (GI), which ensures products tagged with a particular region are protected, thereby saving their traditional knowledge and heritage. This makes cultural identity stronger in recognition and protection of traditional practices. 13 Richard Wilder, ‘The Role of Intellectual Property Rights in COVID-19 Innovation’ (2021) 24 JIPLP 571.

14 Dev Gangjee, Relocating the Law of Geographical Indications (CUP 2012).

C. Strengthening Economic Rights and Development

IP frameworks thereby help in economic empowerment by contributing to a human right to an adequate standard of living. The protection of inventors' and creators' rights through IP laws creates entrepreneurship and aids economic development. For instance, patents and copyrights assist start-ups and smaller enterprises in their investment and business development processes. The result is job development that eradicates poverty and contributes to sustainable development along human rights standards. D. Creative Commons and Open Access to Knowledge

Intellectual property, the right to education, and right to access knowledge in the age of the information have spawned related initiatives such as Creative Commons and Open Access, flexible licensing models from which creators could share their work but still retain some rights. For instance, Open Access publishing allows free republication of academic research with the belief that economic barriers should not prohibit access to knowledge.15

7. RECOMMENDATIONS AND SUGGESTIONS

To have a fine harmony in IPRs with human rights, several recommendations are found here:

1. Promote the Use of Fair Use and Exceptions: Depict provisions for fair use and

limitations, particularly for educational and transformative purposes, to ensure freedom of speech.

2. Use Compulsory Licensing: Make full use of compulsory licensing to achieve greater

access to the availability of affordable medicines in a public health emergency.

3. Encourage Voluntary Licensing: Encourage voluntary licensing agreements over

technologies, to open up the dissemination of the crucial medicines in developing countries.

4. Create sui generis Systems: Create specific legal systems that will prevent the

15 Budapest Open Access Initiative (2002) https://www.budapestopenaccessinitiative.org/ accessed 13 October 2024.

exploitation of traditional knowledge and cultural expressions.

5. Empower Community Participation: Involve indigenous and local communities in

decisions on rights over their traditional knowledge.

6. Promote Open Access Projects: Develop Open Access publishing models, such that

research made available freely allows a right to knowledge.

7. Establish Monitoring Mechanisms: Mechanisms should be put in place that reflect on

the impacts caused by IP laws on human rights and thus adapt policies accordingly.

8. Involve Different Stakeholders: Different stakeholders must be involved in

policymaking to ensure that all aspects have been put under the IP framework, respecting human rights. These concise recommendations aim to foster a collaborative approach among governments, civil society, and the private sector, ensuring that intellectual property and human rights can coexist and support one another.

8. CONCLUSION

The Human Rights/IPRs nexus is a dynamic and complex landscape that will require proper caution and balancing. While conflicts between these two domains often arise—particularly concerning freedom of expression, the right to health, and privacy—there considerable synergies at play, which will strengthen both intellectual property and human rights. Protection of intellectual property is quite important for innovation, creative ability, and economic development, but this should not be at the cost of the basic human rights. It makes a case for a balanced approach to policy formulation because the IPRs can both be instruments for protection of human rights and turn out to be absolute obstacles to it.

Recommendations made in this paper are related to the inclusion of human rights considerations in intellectual property legislation, support for the provision of access to medicines, protection of traditional knowledge and open access to knowledge. Through this, by implementing such strategies, stakeholders can work towards creating a legal and regulatory framework in respect of and to promote both intellectual property and human rights.

It will require bringing such a balance into existence in order to establish a democratic, open society in which innovation may flourish and human dignity, health, and cultural identity is respected and promoted in an increasingly interconnected and digital world. It will come about only through an extraordinary collaboration of governments, civil society, and the private sector, who can balance the pull of intellectual property and human rights.

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