IPR and Human Rights: an introduction
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The document provides an extensive overview of human rights and intellectual property rights (IPR), tracing their historical context and development, including key declarations. It discusses the interplay between IPR and human rights, emphasizing the importance of access to knowledge and education, as well as the implications of copyright law on these rights. Furthermore, it examines landmark legal cases related to copyright and patents, particularly in India, highlighting the balance between protecting creators and ensuring public access to knowledge and resources.
IPR and Human Rights: an introduction
- 1. IPR and Human Rights: an introduction Dr. Sabuj Kumar Chaudhuri DLIS, University of Calcutta, WB, India Contact>>>>sabujkchaudhuri@gmail.com
- 2. What is Human Rights ? What is IPR?
- 3. Let us understand... • What is a human ? • What is right ? Human + Right = Human Right
- 4. Look Back at the Genesis... • The Cyrus Cylinder (539 BC), a clay tablet is considered as the first human rights declaration in history. It is translated into all six official languages of the United Nations and its provisions parallel the first four Articles of the Universal Declaration of Human Rights. • 1215: The Magna Carta—gave people new rights and made the king subject to the law. 1628: The Petition of Right—set out the rights of the people. 1776: The United States Declaration of Independence— proclaimed the right to life, liberty and the pursuit of happiness. 1789: The Declaration of the Rights of Man and of the Citizen—a document of France, stating that all citizens are equal under the law.
- 5. Story of Human Rights
- 6. Contd... The American Declaration of the Rights and Duties of Man of April 1948, also known as the Bogota Declaration,[was the world's first international human rights instrument of a general nature.
- 7. Contd... On 10 December 1948, the Universal Declaration of Human Rights was adopted by the General Assembly by a vote of 48 in favour, none against, and eight abstentions.
- 8. The Universal Declaration of Human Rights—the first document listing the 30 rights to which everyone is entitled
- 9. Basics of IPR • What is property? • What is Intellectual property (IP)? • What is Intellectual Property Rights(IPR)? 10 December 2016
- 10. Property • The term is extraordinarily difficult to answer. • Ordinary person defines property as ‘thing’ but attorney defines it as ‘right’. It has three understandings : • Legal Understandings: Property is the inclusion of rights of exclusive use and alienability • Economic Understandings: Property includes all rights of individuals to valuable resources. • Scientific Understandings: Properties are attributes, characteristics or qualities that can be applied generally to a group of objects. 10 December 2016
- 11. • Begin with Reeve's (1986, p. 11) definition of property. Owner A owns property P if and only if: • 1) A has the right to use P; • 2) A may exclude others from using P; • 3) A may transfer rights Property involves a bundle of rights, including the rights of usufruct, exclusivity, and alienability. The entire bundle can be held by one person or divided among multiple parties. Property rights confer power. 10 December 2016
- 12. Types of Property • The tangible property includes physical objects such as land, household goods, car etc. • The intangible property includes a list of products of human intellect such as patents, copyright, trademarks and industrial designs etc. 10 December 2016
- 13. Rights of A Property Owner • Right to own • Right to exclusive use • Right to disallow others from its use • Right to sell • Right to transfer • Right to donate • Right to rent • Right to lend • Right to derive profit out of it • Property involves a bundle of rights • The entire bundle can be held by one person or divided among multiple parties. • Property rights confer power.
- 14. Intellectual property (IP) deals with the creations of the human intellect and protects the creations of the human mind, the human intellect. This is why this kind of property is called “intellectual property”. • Intellectual property rights (IPR) are the rights awarded by society to individuals or organizations principally over Intellectual Property i.e., creative works: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. They give the creator the right to prevent others from making unauthorized use of their property for a limited period. 10 December 2016
- 15. Classification of IPR IPR Industrial Property Patent Industrial Design Trademark Trade Secret Geographical Indications (GI) Utility Models Artistic & Literary Property Copyright Sui generis System (“Latin Word means “of its own kind”) Database Integrated Circuit Plant Breeders’ Right (PBR)
- 16. India’s International Obligations • India is a member of WTO (World Trade Organization) and many international agreements and conventions. Thus India is bound to comply with all these agreements and conventions through a series of acts and ratifications to discharge of her international obligations in the field of intellectual property rights to many international agreements are:
- 17. Types of IPR and Agreements 10 December 2016
- 18. Criteria to get a Patent There are 3 criteria to get a patent Invention has to be Novel Invention has inventive steps Invention must have industrial application For patenting microorganisms , inventor shall deposit biological materials to an authorized depositary institution as notified by the government. 10 December 2016
- 19. First Patent • The first recorded patent for an industrial invention was granted in 1421 in Florence to the architect and engineer Filippo Brunelleschi. The patent gave him a three-year monopoly on the manufacture of a barge with hoisting gear used to transport marble. 10 December 2016
- 20. Landmark Patents Microorganisms First product patent (US Patent No.-141072 dated July 22, 1873) on living matter was granted to L. Pasteur by the USPTO for his invention of anomalous yeast culture. However some people believe that US patent granted to Anand Chakrobarty for a genetically modified Pseudomonas bacterium that would eat up oil spills in 1980 (US Patent No. 4259444) was the first patent on microorganisms.
- 21. Plants In 1930, the United States began granting patents for plants and in 1931, the first plant patent was issued to Henry Bosenberg for his climbing, ever-blooming rose by the USPTO (Patent No.- PP00001 dated 18th August, 1931). Under patent law, the inventor of a plant is the person who first appreciates the distinctive qualities of a plant and reproduces it asexually.
- 22. Animals Researchers at Harvard Medical School in the early 1980s produced a genetically modified mouse (oncomouse) that was highly susceptible to cancer, by introducing an oncogene that can trigger the growth of tumors. Harvard College sought patent protection in the United States and several other countries. The USPTO in 12th April, 1988 granted a patent no. 4,736,866 to Harvard College claiming "a transgenic non-human mammal whose germ cells and somatic cells contain a recombinant activated oncogene sequence introduced into said mammal.
- 23. Patent on Biological Resources 10 December 2016
- 24. Patent on Traditional Knowledge 10 December 2016
- 25. Biopiracy cases on our TK (Animal) The Vechur is the smallest cattle variety in the world. The average height of an adult Vechur cow is only 87 cms, length 124 cms and weight 125 kg. Patent no. EP 0765390 on the Alpha - Lactalbumin Gene Constructs by Roslin Institute, UK has no scientific reference cited for the claim. Since this is based on an Indian breed there is every possibility that the basic research was done in India and 'pirated by the Roslin Institute'.10 December 2016
- 26. First Trademark Suchard was the first international trademark (1893) registered under the Madrid Agreement concerning the international registration of marks by Russ-Suchard & Cie, a chocolate company and Switzerland as country of origin. 10 December 2016
- 27. Types of Trademark TrademarkWord Mark Collective Mark Certification Mark Service Mark Sound Mark Logo 3D Mark 10 December 2016
- 28. First Design George Bruce (July 5, 1781 – July 6, 1866) was an American printer, industrialist and inventor. On 9 November 1842 he was awarded the first design patent (a new form of patent authorized by Act of Congress) for fonts(printing typefaces and borders). 10 December 2016
- 29. First Copyright In England the printers, known as stationers, formed a collective organization, known as the Stationers' Company. In the 16th century the Stationers' Company was given the power to require all lawfully printed books to be entered into its register. The monopoly came to an end in 1694, when the English Parliament did not renew their power Statute of Anne (1710) which is widely regarded as the first modern copyright law 10 December 2016
- 30. Interplay of Human Rights & IPR Key international human-rights instruments have acknowledged that intellectual products have an intrinsic value as an expression of human creativity and dignity • Article 27 section 1 of the UDHR states that 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. • This right is linked to another provision section 2 of Article 27: ‘Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- 31. Copyright as an Impediment to Access to Knowledge tantamount to Violation of Human Rights
- 33. 33 A Few Realities in Academia
- 34. 12/10/2016 34
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- 42. Copyright is a kind of Intellectual Property Rights (IPR) Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings for a limited period of time after that it goes into the public domain. For copyright protection: •The work must be original. •The work must be fixed, or presented in a tangible form such as writing, film, or photography. • Created by any qualified person Let Us Discuss The Functional Aspects… of Copyright
- 43. Rights of Copyright Owners • Copyright is in essence a bundle of rights covering the following: Rights for reproduction, i.e. exclusive rights to make copies of the work. Rights for modification/adaptation, i.e. exclusive rights to modify and make adaptations and create derivative works. Rights for distribution, i.e. the rights distribute the work to the public. Rights for public performance, i.e. the right to recite, play, dance, or act with or without the aid of a machine. Rights for public display, i.e. the right to display the work anywhere that is open to the public 12/10/2016
- 44. Copyright as Economic or Moral Right Copyright Economic Right Moral Right assigned, licensed Can not be or reserved transferred 12/10/2016
- 45. Basic values and ideology of copyright The basic values and ideology of copyright are attached with 4 elements namely, • Individualism • Commodification • Reward • Consumerism (The Copy/South Research Group April 2006) 12/10/2016 45
- 46. Sharp Contradiction IP protection is a necessary tool for development. IP is viewed as the indispensable ingredient in the complex process of knowledge and wealth creation
- 47. Berne Convention Berne Convention (1886) is the WIPO driven CR Convention incorporated into the TRIPS agreement India is a member of Berne Convention (1928-04-01) India has been a WTO member since 1 January 1995 India joins TRIPS on January 1, 2005
- 48. Early Days of the Convention France, Germany, and the UK signed the Berne Convention in 1886, they effectively committed their colonies to the Convention’s Obligations. British India signed Berne Convention in 1928 When colonies across the South became formally independent countries, many during the 1950s and 1960s including India, they were forced to comply with the Berne Convention. Berne Convention is a particularly rigid , Inflexible and Colonial convention
- 49. New need with Independence • Economic growth and development often led the list of their national priorities. Their needs in the information field – greatly expanded levels of literacy, the rapid establishment of schools, colleges and universities at all levels, getting even limited access to printed materials, especially in technical and scientific fields – were very different from those of rich nations.
- 50. Conflict of Interest • Most countries in the South quickly realized that international copyright conventions had not been set up with their particular interests or requirements in mind rather they are essentially European in orientation
- 51. Violation of Human Rights Controlling Knowledge through strong Copyright regime globally is a strong violation of HUMAN RIGHTS in the global South or developing nations
- 52. Case Study: HR violation in DU
- 53. Contd... • The petition was filed by three publishers—Oxford University Press, Cambridge University Press and Taylor & Francis —against the University of Delhi and Rameshwari Photocopy Services, alleged to have violated India’s copyright law by selling photocopied compilations of study material as ‘course packs’. The petitioners argue that this amounts to a parallel publishing enterprise of sorts that is not just illegal, but also harms their market sales.
- 54. Contd... Article 26 (section 1) of the UDHR says 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. • Section 52 of the Indian Copyright Act, 1957 says that • Certain acts not to be infringement of copyright that constitutes Fair Dealing for purposes of private study, research, criticism, review, or newspaper summary
- 55. Copying-Qualitative or Quantitative ? Copying 21-12-2015
- 56. What is Fair Use ? 21-12-2015
- 57. Determination of Fair Use Four Factor Analysis • P (Purpose) • N (Nature) • A (Amount) • M (Marketing) 21-12-2015
- 58. Contd... • The University of Delhi and Rameshwari Photocopy Service have been restrained from photocopying extracts and compiling them into course packs for students. The injunction order has been passed by the Delhi High Court in September 2012.
- 59. Contd... • In the Indian scenario, the law provisions are fairly straightforward – Photocopying extracts is legal under Section 52(1)(a) of the Indian Copyright Act that permits ‘fair dealing for private use, including research’ and 52(1)(i) that allows ‘reproduction in the course of instruction by a teacher or pupil’. Unfortunately, the injunction order passed by the Delhi High Court was based on an alleged ‘admission’, which was in fact a good faith defence by the University under Section 76 of the Copyright Act.
- 60. Contd... • The photocopy shop here is only an extension of the University of Delhi and Ratan Tata Library and is even located within the university campus. They receive instructions from the Department on what exactly to photocopy, based on reading lists made available by professors and are barred from undertaking any ‘outside jobs’. There is a formalized license agreement, with rules and guidelines, including the price that must be charged.
- 61. Final Judgement • Finally, Delhi High Court on 16th September 2016 in a landmark judgement rejected the plea placed by a group of publishers including Oxford University Press, Cambridge University Press and Taylor & Francis and said that “Copyright is not a divine right". Copyright is there to promote creativity but not to impede the knowledge harvesting by the students. Thus labeling making photocopies by students out of their textbooks taken out from the library is not crime rather it should be considered as a process of knowledge harvesting by the students who otherwise cannot afford costly textbook. It also comes under the ambit of Section 52 of the Indian Copyright Act meant for fair dealing of the copyrighted works of creators.
- 63. Novartis Glivec Case Study • Glivec (imatinib mesylate), produced by the pharmaceutical company Novartis, is prescribed in the case of Chronic Myeloid Leukemia, one of the most common blood cancers in eastern countries. After more than a decade of legal battles surrounding its patentability, the Supreme Court of India gave its final decision on April 1st of 2013, rejecting the appeal of the Swiss giant drug manufacturer. In 2006, the Indian Patent Office first refused Glivec’s patent under Section 3(d) of the Indian Patent Act arguing that it was only a modified version of an existing drug, Imatinib, and therefore that the drug was not innovative. Novartis replied filing legal challenges against the Indian government but the final verdict in April of 2013 ends the battle. Indeed, the Supreme Court stated that even if the bioavailability of the drug was improved, it did not demonstrate enhanced efficacy and that Glivec was not patentable.
- 64. Contd... • Imatinib, sold under the brand names Gleevec and Glivec, is a medication used in the treatment of multiple cancers, most notably Philadelphia chromosome-positive (Ph+) chronic myelogenous leukemia (CML) and also gastrointestinal stromal tumors (GIST). Compared to older drugs imatinib has a relatively benign side effect profile, allowing many patients to live a normal lifestyle.
- 65. Contd... • Indian companies can now roll out a generic and a much cheaper version of the life saving cancer drug, which is a big blow to Western pharma firms.
- 66. Thank you