By: Emma Thornley
If you were asked to predict the next century’s emergent human rights issues, what would you say? There’s no shortage of crises to choose from. Anxieties among laymen and experts alike span environmental, political, and technological topics. The United Nations’ Office of the High Commissioner has issued warnings regarding climate change’s effects on the rights to development, food, sanitation and housing (OHCHR, 2015). The International Journal on Human Rights has similarly predicted compounding crises of poverty, urban development and increasingly isolationist immigration policy (Petrasek, 2014). The Business and Human Rights Resource Centre has written extensively on the threats that advances in technology like artificial intelligence, automation, and digital information constitute (BHRRC, 2021).
In the face of these formidable challenges, more futuristic and cerebral concerns can lose their potency. I believe that intellectual property rights, AKA IP rights, are a prime example of how highly theoretical concepts can escape public scrutiny. Outside of academia’s ivory tower, IP rights can seem underwhelming compared to broader human rights concerns. In reality, IP rights are shaping the future of freedom of information, access to cultural heritage, artistic expression and Indigenous rights (OHCHR, 2015).
The extent of our day-to-day entanglement with IP’s gargantuan spread could (and has) filled volumes. I couldn’t do it justice in a small article. So instead, I’d like to introduce you to what IP is, the basics of how it works, and a select assortment of ways it’s influencing human rights close to home. It’s my hope that you’ll agree intellectual property rights are instrumental to human rights as a whole and you will engage critically with related issues in future.
So what exactly are IP rights? They’re a legal quantification of intellectual, intangible assets, giving ownership over inventions, designs, creative products, brands and more (CIPO, 2016). At its core, intellectual property rights are about ideas. Who owns an idea? How do they come to own them, and what gives them that right? Who can use an owned idea? Who can profit from it?
Think of a company brand. Maybe the cafe you buy coffee from on your morning commute, or your favourite clothing store. Their company name is an intellectual property right. They own it. They have applied for ownership of that specific name with the Canadian Intellectual Property Right office, secured it, and registered it. Nobody else, individual, corporation or organization, has the right to use that name without the brand’s permission, or outside the scope of fair use outlined in S. 29 of the Canadian Copyright Act (Government of Canada, 1985). That same brand also owns the intellectual rights to their logo and unique products. As an example, Starbucks owns the phrase “Pike Place”.
Songwriters own original melodies and lyrics. Authors own their stories and the unique aspects which comprise them. In a particularly infamous example, Anne Rice, author of Interview with the Vampire, petitioned to have all fan fiction involving any aspect of her publications removed from fan fiction websites (Pauli, 2002). Her push failed, but only because fan fiction is considered transformative and therefore fair use (Kopp, 2021).
Functional inventions and invention blue-prints can also be owned. Vaccines, including the various COVID-19 shots, are patented (Lindsey, 2021). So are genetically modified organisms (Coles, 2021).
This is where we begin to see the obvious overlaps between IP rights and human rights.
In a 2015 submission to the United Nation’s Human Rights Council, science and culture were described as “fundamental to human dignity and autonomy” (Shaheed, 2015, p. 3) Exploitative intellectual ownership practices therefore constitute a uniquely insidious threat. Shaheed, the report’s author, drew on the collective concerns of international human rights organizations when she noted that the tension between IP rights and human rights was characterizable as the tension between community and privatization (2015, p. 3). Knowledge and practices that had traditionally been held as communal property, if not birthright, were being appropriated by private entities (Hale, 2018)
Jenna Rose, a researcher at the Grenoble Ecole de Management’s Business Lab for Society, referred to this process as “scientific colonialism” in an article about biopiracy in the medical field (2016). She described medical biopiracy as follows:
“Often, in the search for new bioresources, researchers draw on local people’s traditional knowledge about the properties of a particular plant, animal or chemical compound. [Biopiracy is] when researchers use traditional knowledge without permission, or exploit the cultures they’re drawing from.” (2016)
Biopiracy and resource appropriation is an ongoing issue in agriculture as well. Monsanto, a genetically modified seeds distributor, has been named by Indigenous activists as one of the largest corporate biopirates around today (LaDuke, 2005, p. 115). Seeds were historically common property. Farmers would collect seeds through progressive harvests, effectively creating a genetic bank of good farming stock. Some private corporations, Monsanto included, have thrown their weight behind privatizing certain genetic materials, using the genetic modification of existing crops as grounds for ownership. Companies like Monsanto are known for “creating sterile seeds or requiring farmers to sign contracts stating that they will not save seeds from Monsanto’s crops.” (LaDuke, 2005, p. 115) A 2004 Canadian legal case, Monsanto Canada Inc. v Schmeiser, set a legal precedent with far-reaching implications across agriculture.
As LaDuke describes it, “in Monsanto’s notorious case of Percy Schmeiser of Bruno, Saskatchewan, a lifetime’s work in seeds garnered from careful plant breeding was almost ruined by pollen blown in from [Monsanto’s] neighbouring fields of Roundup Ready canola.” (2005, p. 115). Schmeiser gathered seeds from the crops that had sprung up along his property line for use in planting. He was sued for patent infringement. The Supreme Court ultimately ruled in Monsanto’s favour (SCC, 2004). Note that Schmeiser had not intended to infringe on any patenting claim. Circumstances blew viable Monsanto seeds into his field, contaminating his genetic seed bank. Schmeiser was held to be in violation of Monsanto’s patenting but was not financially liable because the seeds were of mitigable benefit without Roundup Ready chemical spray, which Schmeiser did not have (Cullet, 2004).
A basic principal of the Supreme Court’s finding was that ignorance of infringement is not a defence for it (BYU, n.d.). This raised alarming speculative questions for activists and farmers alike. How are farmers supposed to know if a crop growing on their property is the genetic copyright of another company? If they’re financially liable for any profit they earn from a GMO, irrespective of their knowledge of that crop’s copyright status, how can they protect themselves? This question is particularly relevant in light of the unsupervised cross-breeding of GMO’s and non-GMO’s (The Royal Society, 2016). While humans are beholden to IP law, pollinating agents like insects, birds and wind are not. What happens when accidental pollination inevitably occurs and alters the composition of a farmer’s crop?
Biopiracy and the copyrighting of natural resources are consequently indicative of two emerging problems. Firstly, the appropriation of a community’s heritage and the subsequent exclusion of that community from their traditional resource. Secondly, the “developmental monoculture and agenda underscoring Global IP regimes and their exploitative extension […] indigenous communities are now being increasingly compelled to defend their culture at, what is regarded by dominant Western narratives as, the cost of the public domain.” (IP Osgoode, 2000) Non-Indigenous farmers are similarly burdened by larger monopolies’ exploitation of genetic patenting at the expense of smaller agriculture.
IP and human rights are also competing in the medical sphere. Earlier in this article, I mentioned that the COVID-19 vaccine is held under patenting. Amnesty International issued a report on that patenting earlier this year, stating in no uncertain terms that the monopolistic hold select pharmaceutical manufacturers have on the vaccine is obstructing poor and developing nations from accessing life-saving treatment (Amnesty International, 2021, p. 4).
“While Europe, the US and a handful of other states emerged from lockdown […] parts of Africa, Asia and Latin America plunged into renewed crises, pushing ill-equipped health systems to the brink and causing tens of thousands of preventable deaths every week […] Despite receiving billions of dollars in government funding and advance orders which effectively removed risks normally associated with the development of medicines, vaccine developers have monopolized intellectual property, blocked technology transfers, and lobbied aggressively against measures that would expand the global manufacturing of vaccines. Some companies- Pfizer, BioNTech and Moderna— have so far delivered almost exclusively to rich countries, putting profit before access to health for all.” (Amnesty International, 2021, p.4)
Prior to the release of Amnesty’s report, Pfizer was making headlines for publicly opposing the US administration’s call to waive COVID vaccine patent rights (Breuninger, 2021). None of the three companies named by Amnesty have since waived their IP protection.
I hope I’ve been able to illustrate how the implementation of IP rights can sometimes stretch beyond the reasonable scope. As a final, more light-hearted example of this phenomenon, consider reality t.v. celebrity Kylie Jenner’s attempts to trademark the name ‘KYLIE’. Her initial application was challenged by Kylie Minogue. Minogue’s legal team argued that Jenner’s application should be refused, on the grounds that it “would lead to confusion among consumers between the two Kylies […] The USPTO commonly refuses to register trademarks when the applied-for mark is confusingly [sic] similar to other, already-registered marks.” (TFL, 2019) Anyone else named Kylie who had used or intended to use their name in the course of doing business would likely have similar concerns.
While this seems like a silly example, many communities and organizations take the intellectual ownership of genetic materials, natural resources and vital medical treatment just as seriously as you might take somebody else claiming ownership of your name. And rightly so.
The United Nations have acknowledged every human’s right to food, medical care, participation in their community’s cultural life, and share in the benefits of scientific advancement (UN, 2021). IP rights should not invalidate the basic human rights which sustain and define us. They are expressions of collective history, family traditions and personal identity. To patent and copyright them is to patent and copyright our ways of life.
It is important to note that IP rights are not, as a whole, a threat to human rights. To the contrary, they can be used to protect consumers, entrepreneurs and artists from exploitation (US Chamber of Commerce, 2009). Yet like so many other things, its practice can be manipulated to serve private interests at the expense of others. Critically interacting with IP rights at every stage of their development and implementation is integral to insuring they serve us, rather than harm us.
References:
Amnesty International (2021, September) A Double Dose of Inequality. Amnesty International. https://www.amnesty.org/en/documents/pol40/4621/2021/en/
Breuninger, K. (2021, May 7) Pfizer CEO opposes U.S. call to waive Covid vaccine patents, cites manufacturing and safety issues. CNBC. https://www.cnbc.com/2021/05/07/pfizer-ceo-biden-backed-covid-vaccine-patent-waiver-will-cause-problems.html
Business & Human Rights Resource Centre (2021) Technology and Human Rights. Business & Human Rights. https://www.business-humanrights.org/en/big-issues/technology-human-rights/
Canadian Intellectual Property Office (n.d.) Intellectual Assets. Government of Canada. ic.gc.ca/eic/siTe/cipointernet-internetopic.nsf/eng/wr03585.html
Coles, J. (2021, July 30) IP & Agribusiness: How GMOs, superfoods & the cannabis industry are shaping IP rights in Canada. Expert. https://www.lexpert.ca/legal-insights/ip-agribusiness-how-gmos-superfoods-the-cannabis-industry-are-shaping-ip-rights-in-canada/356005
Copyright Licensing Office (n.d.) Copyright Myths. Birmingham Young University. https://copyright.byu.edu/copyright-myths
Cullet, P. (2004, October 22) Lessons from Canada. The International Environmental Law Research Centre. http://www.ielrc.org/content/n0407.htm
Global Innovation Policy Centre (2009, December 28) Why Are Intellectual Property Rights Important? U.S. Chamber of Commerce. https://www.theglobalipcenter.com/why-are-intellectual-property-rights-important/
Government of Canada (n.d.) Infringement of Copyright and Moral Rights and Exceptions to Infringement (continued). Justice Laws Website. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-6.html#docCont
Hale, Z. A. (2018, April 4) Patently Unfair: The Tensions Between Human Rights and Intellectual Property Protection. University of Arkansas Little Rock. https://ualr.edu/socialchange/2018/04/04/patently-unfair/
Kopp, J. (2021, April 28) Is Fanfiction Legal? The New York Journal of Intellectual Property. https://blog.jipel.law.nyu.edu/2021/04/is-fanfiction-legal/
Lindsey, B. (2021, June 3) Why intellectual property and pandemics don’t mix. Brookings.
Office of the United Nations High Commissioner for Human Rights (2015) The impact of intellectual property regimes on the enjoyment of right to science and culture. The United Nations. https://www.ohchr.org/en/Issues/CulturalRights/Pages/impactofintellectualproperty.aspx
Office of the United Nations High Commissioner for Human Rights (2015) Understanding Human Rights and Climate Change. The United Nations.https://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf
Pauli, M. (2002, December 5) Fan Fiction. The Guardian. https://www.theguardian.com/technology/2002/dec/05/internet.onlinesupplement1
Petrasek, D. (2014) Global Trends and the Future of Human Rights Advocacy. The International Journal on Human Rights. https://sur.conectas.org/en/global-trends-and-the-future-of-human-rights-advocacy/
Rose, J. (2016, March 7) Biopiracy: when indigenous knowledge is patented forprofit. The Conversation. https://theconversation.com/biopiracy-when-indigenous-knowledge-is-patented-for-profit-55589
Supreme Court of Canada (2004) Monsanto Canada Inc. v Schmeiser. Lexum. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2147/index.do
The Fashion Law (2019, June 6) On the Heels of the Kylie v. Kylie Trademark Battle, Kylie Minogue Launches Cosmetics. The Fashion Law. https://www.thefashionlaw.com/on-the-heels-of-the-kylie-v-kylie-trademark-battle-kylie-minogue-launches-cosmetics/
The Royal Society (n.d.) If we grow GM crops will they cross breed with other plants? The Royal Society. https://royalsociety.org/topics-policy/projects/gm-plants/if-we-grow-gm-crops-will-they-cross-breed-with-other-plants/
The United Nations (2021) Universal Declaration of Human Rights. The United Nations.
References:
Amnesty International (2021, September) A Double Dose of Inequality. Amnesty International. https://www.amnesty.org/en/documents/pol40/4621/2021/en/
Breuninger, K. (2021, May 7) Pfizer CEO opposes U.S. call to waive Covid vaccine patents, cites manufacturing and safety issues. CNBC. https://www.cnbc.com/2021/05/07/pfizer-ceo-biden-backed-covid-vaccine-patent-waiver-will-cause-problems.html
Business & Human Rights Resource Centre (2021) Technology and Human Rights. Business & Human Rights. https://www.business-humanrights.org/en/big-issues/technology-human-rights/
Canadian Intellectual Property Office (n.d.) Intellectual Assets. Government of Canada. ic.gc.ca/eic/siTe/cipointernet-internetopic.nsf/eng/wr03585.html
Coles, J. (2021, July 30) IP & Agribusiness: How GMOs, superfoods & the cannabis industry are shaping IP rights in Canada. Expert. https://www.lexpert.ca/legal-insights/ip-agribusiness-how-gmos-superfoods-the-cannabis-industry-are-shaping-ip-rights-in-canada/356005
Copyright Licensing Office (n.d.) Copyright Myths. Birmingham Young University. https://copyright.byu.edu/copyright-myths
Cullet, P. (2004, October 22) Lessons from Canada. The International Environmental Law Research Centre. http://www.ielrc.org/content/n0407.htm
Global Innovation Policy Centre (2009, December 28) Why Are Intellectual Property Rights Important? U.S. Chamber of Commerce. https://www.theglobalipcenter.com/why-are-intellectual-property-rights-important/
Government of Canada (n.d.) Infringement of Copyright and Moral Rights and Exceptions to Infringement (continued). Justice Laws Website. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-6.html#docCont
Hale, Z. A. (2018, April 4) Patently Unfair: The Tensions Between Human Rights and Intellectual Property Protection. University of Arkansas Little Rock. https://ualr.edu/socialchange/2018/04/04/patently-unfair/
Kopp, J. (2021, April 28) Is Fanfiction Legal? The New York Journal of Intellectual Property. https://blog.jipel.law.nyu.edu/2021/04/is-fanfiction-legal/
Lindsey, B. (2021, June 3) Why intellectual property and pandemics don’t mix. Brookings.
Office of the United Nations High Commissioner for Human Rights (2015) The impact of intellectual property regimes on the enjoyment of right to science and culture. The United Nations. https://www.ohchr.org/en/Issues/CulturalRights/Pages/impactofintellectualproperty.aspx
Office of the United Nations High Commissioner for Human Rights (2015) Understanding Human Rights and Climate Change. The United Nations.https://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf
Pauli, M. (2002, December 5) Fan Fiction. The Guardian. https://www.theguardian.com/technology/2002/dec/05/internet.onlinesupplement1
Petrasek, D. (2014) Global Trends and the Future of Human Rights Advocacy. The International Journal on Human Rights. https://sur.conectas.org/en/global-trends-and-the-future-of-human-rights-advocacy/
Rose, J. (2016, March 7) Biopiracy: when indigenous knowledge is patented forprofit. The Conversation. https://theconversation.com/biopiracy-when-indigenous-knowledge-is-patented-for-profit-55589
Supreme Court of Canada (2004) Monsanto Canada Inc. v Schmeiser. Lexum. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2147/index.do
The Fashion Law (2019, June 6) On the Heels of the Kylie v. Kylie Trademark Battle, Kylie Minogue Launches Cosmetics. The Fashion Law. https://www.thefashionlaw.com/on-the-heels-of-the-kylie-v-kylie-trademark-battle-kylie-minogue-launches-cosmetics/
The Royal Society (n.d.) If we grow GM crops will they cross breed with other plants? The Royal Society. https://royalsociety.org/topics-policy/projects/gm-plants/if-we-grow-gm-crops-will-they-cross-breed-with-other-plants/
The United Nations (2021) Universal Declaration of Human Rights. The United Nations.
https://www.un.org/en/about-us/universal-declaration-of-human-rights
Image Attribution: Pixabay, artist “Geralt”, link: https://pixabay.com/illustrations/artificial-intelligence-network-3706562/