by Willem Grosheide (ed). Cheltenham, UK & Northampton, MA, USA: Edward Elgar, 2010. 328pp. Cloth: €89.95/$160.00. ISBN: 9781848444478.
Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of the Intellectual Property Concentration at Suffolk University Law School in Boston. Email: Mrustad [at] suffolk.edu.
The World Intellectual Property Organization (WIPO) and the Office of the United Nations High Commissioner for Human Rights (OHCHR) highlighted the significant questions raised in this book in their panel on “Intellectual Property and Human Rights” which took place in Geneva on November 9, 1998, to mark the Fiftieth Anniversary of the Universal Declaration of Human Rights (UDHR). Intellectual property rights (IPRs) were embodied as human rights first in the UDHR and later addressed in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994. . By way of example, Article 27 of the UDHR states that all world citizens have a right to participate in the cultural life of the community. This volume updates the intellectual property/human rights connection with its thoughtful essays addressing issues such as access to culture, indigenous people’s right to preserve traditional knowledge, and the rights of authors and creative workers in an increasingly globalized, networked world.
This is a welcome volume because further research is needed on the complex relationship between intellectual property and human rights. One hypothesis is that intellectual property is at odds with human rights. Too much patent protection, for example, may have deleterious impacts on health care in less developed countries (LDCs). A patent is a right to exclude and therefore a drug patent may well exclude those without the means to pay for a pharmaceutical needed to sustain public health. The law of trade secrets for example requires the owner to use reasonable means to keep information secret. This requirement conflicts with the wide dissemination of traditional knowledge. This collection of essays on the relationship between intellectual property law and the law of human rights arises out of a conference held in 2006 to celebrate the twentieth anniversary of the Centre for Intellectual Property Law (CIER) at the Molengraaff Institute for Private Law at Ultrecht University in the Netherlands. This edited volume on the intellectual property/human rights nexus is the first in a series of scholarly works from the CIER.
The general introduction by Willem Grosheide of CIER is a telescopic outline of the origins and development of intellectual property rights and human rights. Professor Grosheide does an excellent job of explaining the roots of IPRs and explaining how they became internationalized with the Paris Convention of 1883 (PC) on industrial property (patent law) and the Berne Convention of 1886 on copyright law (BC) (p.4). He explains that the birth of [*129] human rights was made possible by general support for “self-determination without any distinction as to race or sex, as well as the broad promotion of social, economic, and political rights for everyone” (p.4). He asks whether human rights are culturally or universally defined (p.6). If intellectual property is a human right, it is questionable whether IPRs should be able to be exploited by corporate entities holding them (p.6). Another quandary is that IPRs are protected by private law, while human rights are embedded in public law (p.5). Also at issue is whether it makes a difference if IPRs are being exercised in the developed world as opposed to in LDCs (p.6). Grosheide’s general introduction explains how human rights are addressed through international treaties and instruments (pp.7-21). He examines instruments such as the BC, PC, and the WIPO Copyright Treaty (WCT 1996) (p.9) even though these instruments do not explicitly address human rights (p.13).
These instruments pale in comparison to the TRIPS Agreement (p.9) which Professor Grosheide examines in detail. He argues that the incorporation of IP rights adumbrate values such as neoliberalism, privatization, and deregulation that are inimical to the concept of the public good (p.10). Another point is that when new IPRs are recognized, there is the side effect of reducing free access. Professor Grosheide explains that there are few decisions from the European Court of Human Rights dealing with IP law (p.18). He criticizes the ANHEUSER-BUSCH v. PORTUGAL case for its odd holding that corporations can own human rights (p.18). He next lays out a typology comparing the public law of human rights with the private law of intellectual property rights (p.21). Human rights, for example, are ex persona while IPRs are ex lege. IPRs are limited to specific terms while human rights are unlimited. IPRs are freely assignable while human rights are not. The owner may exploit IPRs while human rights are non-exploitable (p.21).
Section three of his general introduction explores the relationship between IPRs and human rights in the legal literature (p.21). In doing so, he also reviews the contributions to this literature in his book, by examining the work of Drahos, Okediji, Yu, Helfer and Dinwoodie. He concludes that there is a poverty of references about human rights in binding international legal agreements (p.33). Nevertheless, in the past 10 to 15 years, a debate has emerged as to the appropriate balance between IPRs and human rights. The contributors to this volume consider the importance of building a human rights framework into IP. The diverse contributors differ as to where the balance should be struck.
In Chapter 2, Cees Flinterman, the Honorary Professor of Human Rights at Utrecht University, gives readers a new audit of human rights with a focus on the role of the UN which universalized human rights (p.37). He traces the evolution of human rights as a new branch of public international law since 1945. Madeleine de Cock Buning’s piece, Expansion and Convergence in Copyright Law discusses the development of copyright law vis-à-vis its human rights context. (p.47). She documents the tremendous impact of electronic information and communication technologies. The historians of intellectual property law [*130] will agree that the Internet reached its takeoff point in the 1990s. The National Science Foundation (NSF) describes the 1990s as the decade when the world went online. The federal law of copyright recognizes property interests in expression that is the product of the human intellect. Ideas such as the quantum theory of physics are not protectable, but a book explaining this theory would be copyrightable. The Internet has shifted the path of copyright law more than any other branch of the law. In the digital era, computer companies prefer to distribute software directly via the Internet. Virtual stores like Apple’s iTunes have sold more than $1 billion of digital works through their internet downloadable software program which allows users to purchase songs, electronic books and television shows.
Peer-to-peer sharing programs (“P2P”) permit users to swap music, software, videos, and other copyrighted materials. Napster was the pioneering P2P sharing program permitting users to exchange “Moving Pictures Experts Group, Audio Layer III” (MP3) music files stored on individual computer hard drives with other Napster users. MP3 is a compression system that has the ability to reduce bytes at no cost to sound quality. Professor de Cock Buning discusses how copyright law is shaped by e-information technologies and the networked world. The new technologies, for example, have strained the boundaries between copyright law and patent law (p.48). Her piece provides a cogent history of copyright law from the British Statute of Queen Anne (1709), now seen by many as the origin of copyright law, to the latest developments. She notes how technological changes impacted rules for copyright law and databases. For example, the European Database Directive of 1996 “was initially designed for electronic databases,” though it also includes paper-based collections (p.55). The expansion of copyright created the need for limitations such as exemptions for users and reverse engineering. This essay identifies secondary infringement as a “hot button” issue shaped in large part by the difficulties of protecting copyrighted materials in cyberspace (p.59). The chapter explains both the expansion of copyright law and its convergence with human rights.
Professor Rochelle Cooper Dreyfuss’ essay on patents and human rights explains how compulsory licensing provisions attempt to achieve a balance between the right to exclude and human rights. She explains how those who seek patent protection are sounding in “economic and practical considerations, not in human rights (p.81). Her contention is that patent law does not exhibit human rights in multiple legal systems. Section 3 of her essay examines how the human rights rhetoric has emerged in patent law (pp.87-90). Section 4 explains how patent law is about encouraging innovation rather than about the public interest. This section focuses on reforming patent law to account for its globalization and the concomitant access problem that arises. (pp.92-93).
Part II of this collection examines IPRs as human rights. Joost Smiers contends that copyright law as presently constituted is not fit for the twenty-first century. Duncan Matthews’ piece examines how the human right to healthcare is at odds with IPRs. He [*131] examines the role of pharmaceutical product patents and anti-retroviral medicines in Brazil and South Africa as emblematic of the tension between IPRs and human rights. Wendy Gordon applies a legal-positivist perspective in examining the claim that patent law can never be based in human rights. Her chapter examines the clash between the interests of authors in the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and national patent legislation (p.156). Professor Gordon, a leading copyright scholar, contends that Locke’s natural rights theory often used to justify expansive IPRs is unwarranted. (p.158) She compares the U.S.’ “first to invent” approach to patent law to the “first to file” approach adopted by most other countries (p.164). She contends, “U.S. law grants patents in ways that diverge from notions of ‘authorship’” (p.165). Each piece in Part II presents telescopic themes about important issues.
Part III is entitled, “Human Rights as Restrictions to Intellectual Property Rights." Lucky Belder’s introduction examines how IPRs have affected indigenous communities as holders of traditional knowledge. He introduces the “utilist” and rights-based perspectives on the codification of property rights and human rights. He notes how the BC, PC, and TRIPS imply external limitations to exploiting IPRs (p.177). Professor Belder identifies three ideas in this section: “The first is that we should realize the shared values of human dignity and legal certainty are underpinning both human rights and intellectual property rights.” Second, human rights provisions limit IP rights. Finally, IPRs need to accommodate international public law concerns to protect individuals and communities (p.179).
This book is ideally suited for advanced courses in IP law and policy. The essays viewed together are also appropriate for courses in human rights law. This volume is recommended for political scientists as the chapters provide background information for those not trained in the law. All social scientists would benefit from the discussions of social, moral, and legal politics in this book. As we become an information-based economy, IPRs comprise the infrastructure of the political economy. Intellectual property powers the information-based economy and is increasingly outcome determinative for economic and political development. Acquisition librarians, for law and university librarians, need several copies of this book in their collection.
Benkler, Yochai. 2009. THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM. New Haven, Connecticut: Yale University Press.
Rustad, Michael L. 2010. SOFTWARE LICENSING: PRINCIPLES AND PRACTICAL STRATEGIES. New York: Oxford University Press.
ANHEUSER-BUSCH v. PORTUGAL [GC], no. 73049/01, § 65, ECHR 2007-I.
© Copyright 2011 by the author, Michael L. Rustad.