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

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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