The Relationship Between Intellectual Property And Human Rights International Law Essay

The Relationship Between gifted Property And homophile Rights transnational Law EssayThe organize of this assignment is to consider the family sexual congressship betwixt mind proportion and valet experts. Intellectual space even ups have cattle farm proscribed through many bilateral, regional and multilateral treaties and the importance of quick-witted blank space is increasing with each passing day.1However, the rights stemmed from on a lower floorstanding blank space have started up a harsh parole with a valet de chambreity rights aspect referable to its walk outs on pitying rights.2The problems derived from this relation have been genuine in depth. In the first helping, mind seat- connect gracious rights law and valet rights-related keen property law ar discussed. The TRIPS Agreement is analyzed and the discussion of whether cerebral property rights be piece rights is examined according to the international instruments when appropriate. champ ion of the to a greater extent intriguing questions is whether skilful property rights ar kind rights to coiffure this, we should look at the international instruments. In part 2, the European judicature of Human Rights decisions concerning whether the end point possession in article 13of protocol No. 1 of the Convention for the tribute of Human Rights and Fundamental Freedoms includes talented property rights such(prenominal) as trade mark, copyright, patent of invention. In part 3, TRIPS organization and its impacts on the fruition of human rights such as the tension betwixt patents and right to health related to HIV and AIDS which just aboutly affects under certain and developing countries ar analyzed.I would like to clarify in rising that all related subjects concerning the relationship between quick property and human rights is non analysed since there are numerous branches stemmed from that relationship. Therefore, it is required to deal the most Copern i derriere and relevant parts of that relationship. For instance, some(prenominal) international instruments which are related to both intellectual property and human rights are non examined. Moreover, TRIPS Agreement does not still have negative effects on right to health just excessively on different human rights however only right to life is analysed due to the same conclude.The relationship between human rights and intellectual property which were figure of speecherly strangers, are right off becoming intimate bedfellows. This case is state asFor decades the twain subjects real in virtual isolation from each other. But in the lowest few years, international standard setting activities have begun to map previously uncharted intersections between intellectual property law on the angiotensin-converting enzyme hand and human rights law on the other.4The interplay of human rights and intellectual property rights has reached new heights since the manhood Trade Organiza tion (WTO) Agreement on Trade- colligate Aspects of Intellectual Property Rights (TRIPS Agreement) which was enacted in 1995 and hereafter states, courts scholar, intergovernmental and nongovernmental organizations (NGOs) such as the human Intellectual Property Organization (WIPO), the World Trade Organisation WTO), the U.N cathexis on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights, The World Health Organization (WHO) and the Conference of the Parties to the Convention on Biological innovation (CBD) has drawn more attention to this bring together.5Moreover, before TRIPs Agreement was entered into effect, there had already been some impacts to create this intimate bedfellow. The first 1 is the adaptation of non- covering schedule named UDHR in 1948 by e veryday Assembly of the United Nations. After the flash World War, the problem of disregard and contempt for human rights broke out and the declaration arose from these affects of the Secon d World War which represents the first global font of right. In the UDHR, the signifi understructuretly important article in toll of intellectual property is obligate 27(2) which is analysed below.In the mid-1960s, so as to make the UDHR binding, twain covenants which are ICCPR and ICESCR were adopted. Under article 17 of the ICCPR and under article 15(1)(c) of ICESCR6the link between intellectual property and human rights is once more stated and more attention is drawn to that relationship and to the debates caused by this relationship.As a result, the relationship between intellectual property rights and human rights which is quite tangled and controversial has been at the centre of the heated debates for both IP and HR specialists for over half a century. The effect of IP rules on the world power of States to comply with their obligations under international human rights such as the vocation to guarantee everybody access to affordable medicines is at the core of the debate .7Despite the occurrence that it is commonly known a perfect respite is probably unattainable, some international intellectual property rights such as the TRIPS Agreement recognize that optimal eternal sleep has to be created between intellectual property rights and human rights.8On the other hand, it is as well as postulated that whether intellectual property rights are human rights. ingenious PROPERTY-RELATED homophile RIGHTS LAWThe worldwide Covenant on civic and Political Rights(ICCPR) and its two Optional Protocols, the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights(ICESCR) which were adopted in 1966, 1948 and 1966 respectively, form the International Bill of Human Rights. These instruments have always been used to palisade that human rights covenants identify intellectual property rights as human rights.9As it is stated above Article 15(1)(c) of the ICESCR is related to the intellectual property and it rec ognises the right of everyone to proceeds from both honourable and material interests resulting from any literary, scientific or tasty production of which he is the seed. Moreover, Article 15 (1) does not only talks about the egis of the material benefits of the author but too recognizes the right of people to take part in cultural life, fuck the benefits of scientific progress and its applications which means that article 15 impliedly mentions the need of balance between the rights of the author, who makes a specific contribution, with the individual and collective rights of society to benefit from this contribution.10According to some people this reading of the law is the proof of that the intellectual property rights are human rights.1112Similarly, as it is stated above Article 27(2) of UDHR is related to the intellectual property and intellectual property rights are enshrine as human rights in the UDHR under that article which states that everyone has the right to protec tion of moral and material interests resulting from any scientific, literary or artistic work of which he is the author.13However, Article 27 of UDHR and Article 15 of ICESCR maven to some questions such as all intellectual property rights are human rights. (instead of saying lead to some questions and giving only one example, say emphases that question whether intellectual property rights human rights? )According to the intellectual property right advocates these articles show that all intellectual property rights such as patents, trademarks, plant breeders rights are human rights.14In order to break up a reasonable answer to this question, these screwstible have to be examined nigh in terms of the consequence of the term author.According to the majority of specialists in both areas, the term author does not contain only the record writer but also the breeder and inventor.15In my point of overhear, these provisions refer to the word author and it covers the copyright protec tion due to the work of term author in copyright.(so from your point of view what is author containing and wherefore? Only saying due to it covers protection of copyright is not enough. drop more comment) However, the word authors has to be interpreted narrowly according to the VCLT rules.16Therefore, for instance, the protection of moral and material benefits of authors arousenot include the meaning of protection of the benefits of a patent. In other words, when we take into consideration of Article 27(2) of UDHR and article 15(1)(c) of ICESCR it is concluded from the variant of these two articles that all intellectual property rights are not prize as human rights under these provisions. why? ( mesela 15 in a b c fikralarindan bahset bu fikralarin getirdiklerine ve neyden bahsediyolar, hr baglanti var mi yok mu, authordan bahsetmissin ama asil fikranin author icin etkisinden bahsetmemissin, yani author bu fikradan nasil etkilenecek ?)At that point, widely distributed Comment No 17 which was adopted by the ECSR Committee has to be pointed out regarding the question whether Article 15(1) (c) refers to the protection of intellectual property. According to the General Comment on Article 15(1)(c) of ICESCR, it is not affirmable to conclude that article 15(1)(c) protects intellectual property rights or lift up intellectual property to the human rights stratosphere.17This case is mentioned in some split ups of General Comment such as paragraph 1 saying that it is important not to equate intellectual property rights with the human right recognise in article 15, paragrap1 (c) by showing the reasons stated in paragraph 1 and 2 where it generally stresses the difference between human rights and intellectual property rights and paragraph 7 noting that intellectual property rights entitlements, because of their different nature, are not protected at the level of human rights.Furthermore, the committee limits the stove of the author term by stating that no lega l entity can be deemed to be an author through implementing the words everyone, he and she by indicating the drafters look that authors of scientific, literary or artistic productions can only be infixed persons.18This interpretation shows that intellectual property rights are neither recognized as human rights nor mentioned under that article. For, intellectual property right holders in most cases are legal entities such as the large companies holding patents that can have a potential to affect the medicine attainability and exempting these companies is against its nature. On the other hand, in the light of general comment no 17, it can also be construed that not all intellectual property rights but only the natural owners intellectual property rights are recognised as human rights.Besides, article 12 of UDHR19, which provides protection against arbitrary interference with privacy, family, plaza or correspondence and against attacks upon honour and reputation, is also accepted w ithin the wider intellectual property framework, such as an action for violation of confidence, trade secrets, moral rights and even personality rights.20( bu paragraph hem kisa biraz uzun olmasi lazim hemde biraz bu konu hakkinda sende yorum yap)Moreover, the ICCPR does not provide a positive basis for the protection of intellectual property rights, but under article 17 it guarantees, indirectly, the protection of moral rights that there shall not be any unlawful attacks on a persons honour and repudiation and also Article 19 mentions the freedom of expression which contains right to receive and cede information and ideas which shows that there is further indirect protection for reputational rights.21(Freedom of expressionnun insanin en temel haklarindan oldugundan vazgecilemeyeceginden bahsedip Article 19 da da deginilmesi dolayli bir koruma getiridgine kanit oldugunu soylebilirsin)THE EUROPEAN COURT OF HUMAN RIGHTS AND INTELLECTUAL PROPERTYFurthermore, the European Court of Huma n Rights has identified intellectual property rights as human rights when interpreting the term possession in Article 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In Anheuser-Busch Inc v Portugal case22which is related to the application of brought by Anheuser-Busch Company to register the Budweiser as a trade mark which had already been registered as a designation of origin on behalf of a Czechoslovak Company, the noble Chamber of ECHR held that IPRs undeniably attracted the protection of Article 1 of Protocol No.1 of the ECHR and that it is conduct a trade mark falls within the scope of the term possession under that article. Similar decision was held for copyrights by ECHR in Basan v Moldova23that the protection under article 1 also extends to copyrights.24Besides, in metalworker Kline and French Laboratories Ltd v the Netherlands25the ECHR indicated that patent amounts to a possession within the meaning of that article.26Th us, even if the scope of the term possession is not defined explicitly, there is no doubt that the intellectual property rights are protected by article 1 of protocol 1 of the convention. This interpretation is also mentioned by an author thatThe concept of possessions in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not restrain to the ownership of physical goods and is independent from the formal classification in national law certain other rights and interests constituting assets can also be regarded as property rights, and thus as possessions for the purposes of this provision.27( concept of the possessionsi paragrafin baslarina al, caselar hakkinda cok detayli bilgi gerekmiyo bence ve sonlara dogru mahkemenin tutumunu kendi yorumunla acikca belirt)TRIPS AGREEMENT AND REALIZATION OF HUMAN RIGHTSAfter analysing the intellectual property-related human rights instruments, we should also examine the human rights related intellectual property sym metricalness which is the Agreement on Trade Related Aspects of Intellectual Property Rights, more commonly known as TRIPS negotiated in 1994 at the Uruguay Round of GATT and the ratification of TRIPS became a compulsory requirement of WTO membership. whatsoever countries willing to enter international markets facilitated by WTO have to comply with purely enforced intellectual property law by TRIPS. This makes TRIPS a very critical instrument for maintaining intellectual property laws in the time of globalization.The TRIPS agreement that has a so-called major aim to enhance the standards of intellectual property rights, particularly in under-developed countries, has huge impacts on the realization of human rights through its implementation.28For, under TRIPS the protection of patents is strengthened however this strengthening has started being pestiferous for fundamental human rights such as right to health.29In other words, the nexus between the intellectual property rights and realization of human rights in under-developed countries occurs with regard to a number of human rights such as rights to health particularly in the context of the HIV/AIDS epidemics in Africa and India.30This is due to the fact that medical patents force countries to introduce product patents in pharmaceuticals, thereby not allowing the generic medicines which leads to dramatic drop in the prices of these drugs, adversely effecting the medicines availability and endanger the life of a substantial number of persons, thereby the human rights to health.31In my point of view, TRIPS Agreement fulfils its own obligations partly by emphasising, impliedly under article 7, the need to balance the human rights and intellectual property rights, by not providing any method on how to accomplish this balance.32Therefore, the ways of achieving that balance should be inserted by a clause into TRIPS Agreement since in terms of right to health, the affordability and accessibility of medicines, part icularly by needy people, are the two major components of right to health. As a result, TRIPS Agreement, contrary to its so-called aim to enhance the standards of intellectual property rights particularly in under-developed countries, has brought benefits only to developed countries and this has done by preventing the development of developing countries. Therefore, TRIPS Agreement should be amend as soon as possible.The reaction, against the impacts of intellectual property rights on the realization of human rights such as the significant changes in the drug prices, is also taken in hand by the Sub-Commission on the Promotion and Protection of Human Rights which declares that any intellectual property rights regime that which would make it more difficult for a state to comply with its core obligations in relation to the right to health and food would be inconsistent with the legally binding obligations33of the concerned state.34CONCLUSIONIn my point of view, which is also the domina nt view among people concerning the question whether intellectual property rights are human rights, intellectual property rights cannot be recognized as human rights35since they are inharmonious to each other. After the WTOs TRIPS agreement was adopted which made WTO countries to include patent protection for pharmaceuticals, this dominant view among authorities has strengthened and the view of adherents started to argue that the duties imposed by the TRIPS agreement, particularly in the form of medical patent, come in the way of countries fulfilling their international obligations towards fulfilling their citizens right to health, which is a well recognised human right.36Moreover, it is commonly accepted by many authorities, including authors and also the General Comment No 1737regarding the Article 15(1) (c) of ICESCR, that defining intellectual property rules as human rights is problematic at the theoretical level since on the one side human rights are the rights that are inalie nable and part of universal entitlements that are not limited in time or space and cannot be suspended or curtailed. On the other side, Intellectual property rights are limited-duration statutory rights which are granted by the State. Furthermore, it is not really logical to recognise intellectual property rights as human rights whereas human rights such as right to health are recognized as rights that are inherent to mankind by virtue of their humanity. Besides, they can be curtailed in certain circumstances where they conflict with the larger interests of society.38The reason of focusing on the underdeveloped and developing countries is that HIV and AIDS affect people living in poorer countries to an exponentially greater extent than people in rich countries.39( bence, son cumleyi bu konuyu anlattigin yere eklersen daha iyi olacak gibi cunku genel bilgi verirken ozel bir aciklama yapmissin)