The Ethics Of Intellectual Property Rights Essay
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The most reputable international organization operating in the field of intellectual property – the World Intellectual Property Organization – defines intellectual property as an area of law which “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce” (WIPO, “What is Intellectual Property?” 2015). It is well known that the two main branches of intellectual property are copyright (artistic creations) and industrial property (inventions, industrial designs). Both branches are closely related to ethical and moral issues. Thus, for instance, in case of copyright an author is entitled to be named as the author (the right of paternity) and to prevent the distortion of his or her work (the right of integrity). In case of industrial property more controversial ethical and moral issues are arising, such as the following colliding approaches: the right of an inventor or legal entity to profit from their inventions, on one side, and the right of society to benefit from scientific and technological advances, on the other.
The Right to Private Property as a Core Social-Economic Human Right
Everyone has the right to the use and enjoyment of his property No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by lawUsury and any other form of exploitation of man by man shall be prohibited by law.
However, none of these regional international treaties recognizes the absolute right to private property, they authorize instead the departure from general rule under certain circumstances. Thus, the American Convention on Human Rights foresees that the law may subordinate the use and enjoyment of property by the third persons to the interest of society (Art. 21(1). The European Convention in the first Protocol also provides that can be deprived of his or her possessions in case of the public interest (Art. 1).
The Interests of an Inventor and Society
All general property issues mentioned above pertain to intellectual property rights too, though there are many peculiarities in the field. Undoubtedly, the rights of an inventor should be protected and he or she should be rewarded for the work. In this regard, patent protection mechanism is aimed firstly at ensuring inventor’s rights. Generally, a patent is the document giving an exclusive right to an inventor or a respective legal entity to exclude third persons from exploiting the invention. In other words, patent protection implies that “the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner's consent” (WIPO, “What is a patent?” 2015). The interests of society are guaranteed in this concern by two factors: (1) a patent can be granted only for a limited period, generally 20 years, and after the expiring date an invention becomes a part of public domain (2) when applying for patent protection an inventor must disclose to the public technical information about his or her invention in a patent application; as a result third persons have access to new knowledge and can further develop the technology and use it after the patent expiration date. The system of patent protection and granting an exclusive right to a patent holder for a certain period of time create important economic and moral incentives for individuals, providing them recognition for their creativity as well as material reward for their marketable inventions. Such incentives inspire innovation and technological progress, which in turn contributes to the ongoing improvement of the human life’s quality. On the whole, the patent system is designed to strike balance between the interests of inventors and the interests of the general public. Nevertheless sometimes this balance seems to be perverted when, for instance, new life-saving medical treatment is protected in Europe and patent holders do not want to issue licenses in the developing countries in need or pharmaceutical products are not available in the countries where the epidemics is on the march. The UN Special Rapporteur for the Right to Health has confirmed that millions of people die annually because they are unable to pay high monopoly prices for medicines established by pharmacological companies (As cited in Singer and Schroeder, 2010). Another example is when an inventor doesn’t want to utilize new technology and just keeps it, whereas this invention could promote technological progress in the society.
Health Concerns and Intellectual Property Rights
The World Health Organization considers the access to safe and affordable medicines as vital and necessary means to ensure the highest possible health standard worldwide (WHO, “Access to medicines”, 2009). In order to maintain the balance between the protection of intellectual property and public health concerns the WHO member-states adopted the resolution “The Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property” in 2008. According to the resolution (s. 5),
.advances in biomedical science have provided opportunities to develop new, affordable, safe and effective health products and medical devices, particularly those that meet public health needs. Urgent efforts should be made to make these advances more affordable, accessible and widely available in developing countries.
The WHO sees a possible solution of ensuring access to essential drugs in producing generic versions of branded medicines for developing countries and least developed countries (s. 6.3). However, the resolution doesn’t have any binding force on the states and their pharmaceutical companies which are free to decide where to distribute their drugs and establish prices voluntarily. To promote these significant ethical issues the legal mechanism of compulsory licensing was developed within the World Trade Organization. It allows developing countries to apply the procedure of compulsory licensing and produce generic drugs for internal market (export is banned) in order to ensure public health. Provisions on compulsory licensing are provided by both the TRIPS Agreement and the Doha Declaration, though the first source doesn’t use the definition “compulsory license”. The Doha Declaration foresees the flexibility of compulsory as following, “Each Member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted” (s. 5 (b). At the same time the TRIPS Agreement lays down the grounds for the use of patent without patent holder’s consent: “national emergencies; anticompetitive practices by pharmaceutical companies; the need to establish a pharmaceutical base; and high prices” (Hopkings 2005). Notably, the member states are free to establish their own grounds within a reasonable scope, which serve the promotion of public health concerns. The statistics show between January 1995 and June 2011 sixteen of the compulsory licensing issuances involved generic drugs for HIV/AIDS, four concerned drugs for other communicable diseases, and four pertained to drugs for non-communicable diseases such as cancer (Beall and Kuhn, 2012).
Ethical issues arising from intellectual property rights can be highly controversial and can create tensions in society. It primarily concerns industrial property. On the one hand, a patent holder possesses an exclusive right to utilize voluntarily a respective invention or method. On the other hand, there are certain general public needs such as technological progress, access to information or public health promotion which can be critical in the developing and least developed countries. As a result, intellectual property law, both nationwide and internationally, is aimed at striking the balance between the interests of patent holders, on one side, and society, on the other. Generally, the expiration of patent and the disclosure obligation serve to ensure access to knowledge in society and prevent absolute paten holder’s monopoly. Sometimes, however, these measures are not adequate to respond to major ethical concerns, such as for instance epidemic flow in the country and as a result, necessity to have cheaper medicines. Special mechanism of compulsory licensing was developed within the WHO to support public health concerns in similar cases. Another important tool is provided by the Paris Convention for the Protection of Industrial Property (Art. 5 (A) and enables compulsory licensing of patent being unused for a long time (four years from the date of filing of the patent application or three years from the date of the grant of the patent). Thus the technological progress in society can be enhanced. In my opinion, the balance between public needs and paten holders’ rights has been established quite properly nowadays, and consequently the ethical and moral concerns of both sides may be addressed effectively.
American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25.1992. [ONLINE] Available at: http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm [Accessed 04 April 15].
Beall, R and Kuhn, R, 2012. Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration: A Database Analysis. PLOS Medicine [Online]. Available at: http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001154 [Accessed 04 April 2015].
Convention for the Protection of Human Rights and Fundamental Freedoms. 1950. [ONLINE] Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf. [Accessed 04 April 15].
Declaration on the TRIPS Agreement and Public Health. 2001. [ONLINE] Available at: https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm [Accessed 04 April 15].
Global strategy and plan of action on public health, innovation and intellectual property. WHA61.21. 2008 [ONLINE] Available at: http://apps.who.int/gb/ebwha/pdf_files/A61/A61_R21-en.pdfhttp://apps.who.int/gb/ebwha/pdf_files/A61/A61_R21-en.pdf. [Accessed 04 April 15].
Hopkings, V E, 2005. Analysis of International Patent Protection and Global Public Health. JPIA [Online]. 83-91 Available at: https://www.princeton.edu/jpia/past-issues-1/2006/5.pdf [Accessed 04 April 2015].
Siroky, D and Sigwart, H, 2014. Principle and Prudence: Rousseau on Private Property and Inequality. Northeastern Political Science Association Journal, [Online]. Volume 46, Number 3, 381-406. Available at: https://www.academia.edu/7758155/Principle_and_Prudence_Rousseau_on_Private_Property_and_Inequality [Accessed 04 April 2015].
Singer, P and Schroeder, D, 2010. Ethical Reasons for Intellectual Property Rights Reform. Incentives for Global Health, [Online]. 1-17. Available at: http://healthimpactfund.org/wp-content/uploads/2012/11/DP7_Singer_and_Schroeder.pdf [Accessed 04 April 2015].
Universal Declaration of Human Rights. 1948. [ONLINE] Available at: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf [Accessed 04 April 15].
WIPO. 2015. What is Intellectual Property? [ONLINE] Available at: http://www.wipo.int/about-ip/en/. [Accessed 04 April 15].
WIPO. 2015. What is a patent? [ONLINE] Available at: http://www.wipo.int/patents/en/. [Accessed 04 April 15].
World Health Organization. 2009. Access to medicines [ONLINE] Available at: http://www.who.int/mediacentre/news/statements/2009/access-medicines-20090313/en/. [Accessed 04 April 15].
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