1.  The right to intellectual property is the protection offered by national, regional and international legal orders to intellectual property as a human right. Even though all types of intellectual property are contemplated, copyright, patents, trademarks, designs, geographical indications and traditional knowledge are species of intellectual property that have received significant attention and jurisprudence in terms of the right to intellectual property.

2.  The absence of significant national protection of the right to intellectual property continues to cast doubt on the existence of this right. Until a few years ago there was a paucity of an express right protecting intellectual property in bills of rights of national constitutions. It was in the international plane that juridical foundations for the right to intellectual property were found. Together with Art. 27 of the Universal Declaration of Human Rights, Art. 15 (1) of the International Covenant for the Protection of Economic Social and Cultural Rights (1966) (ICESCR) provides interpretational guidance and inspiration for the national protection of the right to intellectual property through the general comments of the Committee on Economic Social and Cultural Rights (CESCR). These two provisions were crucial in the debate which began in the aftermath of contextual evaluation of the impact of the World Trade Organisation (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). These debates discussed the impact of TRIPS on a number of human rights such as the effect of patent protection on the right to health generally and access to essential medicines; as well as the impact of copyright protection on access to information (right to access to information). In the main, intellectual property and human rights were considered as different values and accordingly various approaches were considered in terms of the means by which these different values are to be reconciled. The possibility of a right to intellectual property seemed unlikely.

3.  A number of decisions by European regional courts such as Anheuser-Busch strongly demonstrated that intellectual property is protected by the right to property. It is not far-fetched to surmise that the potential of other human rights to protect intellectual property were also recognized as a matter of interpretation and jurisprudence. Recent constitutional texts that expressly recognize the right to intellectual property suggest that the right to intellectual property is no longer in doubt. It is the content of this right that requires articulation and elaboration. Presently, the right to intellectual property exists either as a free-standing right or as part of other human rights. A brief survey of the protection of the right to intellectual property by national constitutions follow.

4.  The first group of constitutions expressly protect intellectual property. Examples of these constitutions include Art. 11(c) of the Constitution of Kenya: 27 October 2010 (Kenya) which provides that the State shall ‘promote the intellectual property rights of the people of Kenya.’ Art. 69 of the Constitution of the Arab Republic of Egypt: 18 January 2014 (Egypt) requires the State to protect all types of intellectual property in all fields and shall establish a body to uphold the rights of Egyptians.

5.  The second group of constitutions protect intellectual property as a human right usually through judicial recognition. The most prevalent right is constitutional property. A good example is section 25 of the Constitution of the Republic of South Africa: 16 December 1996 (S Afr). Other constitutional property clauses include para. 27 of Art. 5 of the Constitution of the Federated Republic of Brazil: 5 October 1988 (Braz) which provides that ‘the exclusive right to use, publication or reproduction of works rests upon their authors and is transmissible to their heirs for the time the law shall establish.’ Thus Art. 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides that ‘[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions.’ In addition, Art. 17 (2) of the Charter of Fundamental Rights of the European Union (2000) provides that ‘Intellectual property shall be protected.’ In the same vein, Art. 13 of the American Declaration of the Rights and Duties of Man protects the material and moral interests of the rights of the author. A variant of the use of constitutional property is through the constitutional protection of a specie of intellectual property. For example, Art. 16 of the Constitution of Sweden: 28 February 1974 (Swed) provides that ‘Authors, artists and photographers shall own the rights to their works in accordance with rules laid down in law’ while section 91 of the Constitution Act of Canada: 29 March 1867 (Can) protects copyright and patents. Another right has been the rubric of the protection of the arts and sciences. For example, Art. 23 of the Constitution of the Arab Republic of Egypt: 18 January 2014 (Egypt) provides that the ‘state guarantees the freedom of scientific research and encourages its institutions as a means towards achieving national sovereignty, and building a knowledge economy’ (freedom of scientific research). Other examples include Art. 42 of the Constitution of the Portuguese Republic: 2 April 1976 (Port) which protects the freedom of cultural creation and Art. 1 of the Constitution of the United States of America: 17 September 1787 (US) which directs Congress to promote the progress of science and useful arts.

6.  It is plausible to argue that while different rights could be used to protect the right to intellectual property it is the right to property that appears to be a natural home of the latter until constitutional reform and/or design in many countries recognize a stand-alone right.

7.  The content of the right to intellectual property can be gleaned from intellectual property legislation which recognize the exploitation rights of the intellectual property owner while also recognizing the public interest in accessing the intellectual property. It is this interaction of the public and private interests in an intellectual property that is the essential attribute of the right to intellectual property. Such a right acknowledges the exploitation rights of those engaged and recognized in intellectual property production on one hand and the public interest requiring availability and access to the intellectual property right on the other.

8.  National legislation protecting intellectual property vary in respect of the relative weight of the public and private interest. It is evident that most intellectual property legislation reflect the dominance of the private interest because of the importance of encouraging and rewarding innovation and creativity which is of crucial importance to society. There is however no intrinsic reason why the public interest cannot be of more or of equal weight.

9.  It is important to remember that the debate about human rights and intellectual property grew from widespread belief and evidence that intellectual property legislation did not adequately represent and facilitate the public interest. While legislative and judicial reform strove to recognize the public interest, they were largely unsuccessful in highlighting the need for alternative paradigms. The language of rights makes a compelling narrative that draws attention to the entitlements of members of the public. Even though human rights have developed as bulwarks against state power, they have also developed as a basis for access to public goods that ensure the dignity and well-being of society.

10.  The challenge of an appropriate content of the right to intellectual property is the relative weight of its constituent parts. Should the public and private interest be of equal or fair priority? What does fair priority mean?

11.  The lack of consensus on the weight to be attached to its constituent parts is a challenge of the right to intellectual property in terms of how national policy choices are struck, challenged, configured and reconfigured, as different interests jostle for prominence. When an intellectual property system is unable to protect the public interest, tension permeates the system necessitating a reconfiguration to protect the public interest. When that system overlooks or neglects the private rights of exploitation there is clamour for protection. It is instructive to note that different legal systems have recently recognized the exploitative interests in intellectual property rights such as computer software, plant variety protection, geographical indications and the like. The private interests of an intellectual property owner are instrumental in regulating access to the intellectual property and thereby creating a monopoly of sorts. The range of rights available to an intellectual property owner is achieved and enhanced through the duration of the rights; exclusive and non-exclusive entitlements and weak public interest mechanisms. An understanding of the ‘three step test’ is an example of a weak public interest mechanism when the requirement that exceptions and limitations should be cumulatively interpreted to ensure that the economic interests of an intellectual property owner are not compromised. Other legislative and administrative measures to enhance the private interest in the right to intellectual property have in the recent past been foisted on national legal systems through bilateral treaties. Multilateral treaties such as the Anti-Counterfeiting Trade Agreement (ACTA) which establish norms that combat generic medicines, counterfeit goods and digital copyright infringement are designed to enhance the rights of intellectual property owners.

12.  The public interest in intellectual property legislation reflects the complex interactions that a legal system employs through legislation, judicial construction and administrative discretion to create a space where information which is representative of intellectual property rights is not subject to the control of the intellectual property owner. In this space information is available to all. The public domain is an unrestricted source of creativity which nurtures the innovation cycle necessary to produce goods and information that is critical to the survival and advancement of society. The public domain reminds us that innovation is a collaborative enterprise and that today’s work depends on yesterday’s work. If the public domain disappears or shrinks, innovation is threatened because the building blocks of knowledge are threatened. The public interest in intellectual property rights feeds the public domain and is thus instrumental to its fulfilment. Another way it can be understood is that the public domain is the end result of the operationalization of the public interest. The public interest is not only descriptive and instrumental, it is also aspirational because it is affirmative of societal interest, worth nurturing. The public interest and the public domain ventilate society’s interests that require for the fulfilment of those interests that intellectual property rights be accessible and usable with appropriate proprietary control.

13.  It is suggested that the two interests of the right to intellectual property are often implicated and find resonance in other human rights. The articulation of the right to intellectual property well after other human rights developed explains to some extent why other rights are far more specific in articulating either or both of the interests that are constitutive of the right to intellectual property. For example, the private and public interest in copyright find meaning in the freedom of expression. In one breath, it can be asserted that copyright is an engine of free speech (expression) which promotes the private interest through the exclusive rights granted to authors. These exclusive rights motivate authors resulting in copyrightable works. In another breath, copyright can be said to hinder expression because it can restrict and block access to copyrightable works since exclusive private rights determine access to works. Accordingly, it would be wrong to assert that copyright is or is not compatible with the freedom of expression per se. The context in which copyright is asserted or denied therefore suggests how the freedom of expression is implicated with and expresses the right to intellectual property. The same arguments can be made of the interaction of copyright and the right to privacy. Essentially it is the private interests of an author that is implicated when copyright is said to interact with privacy. An individual asserting a right to privacy wants to seclude information from the public while copyright may be deployed to ensure access of the information to the public.

14.  Access to essential medicines as a crucial component of the right to intellectual property brings into clearer relief how patents lead to high prices of certain pharmaceutical products that are crucial in battling pandemics. The articulation of specific intervention strategies to ensure access to patent controlled pharmaceuticals find juridical foundations in the right to heath. It will accordingly be wrong to assert that the right to health trumps patents when it can also be asserted that the availability of medicines because of patent protection satisfies some of the objectives of the right to health. Specific rights like the freedom of expression and the right to health therefore form an integral part of the right to intellectual property, which may therefore be regarded as a general right made clearer in some cases by the jurisprudence of other specific rights. As a general right however, the right to intellectual property also interacts with intellectual property legislation to ensure the ventilation of the latter’s constitutive interests.

15.  It is important next to determine whether there is a normative standard of the nature of the balance between the constitutive interests in the right to intellectual property. It would appear that the language of rights and entitlements suggests that the public interest is conceptually of equal priority with the private interests. While equal priority may not be acceptable to all legal systems because of national conditions and circumstances, it would appear that a fair balance between the public and private interests would be acceptable across all legal systems.

16.  The determination of a fair balance in intellectual property legislation is not an easy task. Since the right to intellectual property developed as a reaction to the dominance of the private interest, it is not surprising that the elaboration of the public interest of the right to intellectual property has been more prominent. Given the considerable impact of statutory interpretation, it is easy to imagine that the manner in which public interest mechanisms is understood would have significant impact in realising the right to intellectual property. Thus, whether these public interest mechanisms are interpreted strictly or broadly has been crucial. For example, there is enough evidence to suggest that the public interest in the right to intellectual property has influenced a broad and expansive interpretative ethic of exceptions and limitations in a number of jurisdictions. Several examples are important at this juncture. First is the liberal manner in which the European Court of Justice has interpreted an exception and limitations within Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (see for example Deckmyn). Another example of the elevation of exceptions and limitations from a privilege to an entitlement, arguably in furtherance of the right to intellectual property, can be found in the jurisprudence of the Supreme Court of Canada (Cour suprême du Canada) which has characterized the fair dealing exception as a user right. In many senses the user right approximates to the public interest in the right to intellectual property. In CCH and SOCAN the Supreme Court of Canada held that the fair dealing exception in the Copyright Act is not simply a defence but an integral part of the Copyright Act which, if interpreted liberally, served to maintain a proper balance between author’s rights and user’s interests. Even though the concept of a right to intellectual property did not feature in the Canadian decisions, the tenor of these judgments highlight the public interest in the right to intellectual property which was not adequately recognized. A broadly interpreted fair dealing exception amounting to a user right served to restore the balance to Canadian copyright. In South Africa, the Treatment Action Campaign (TAC) is an example of how the right to health in the South African Constitution promoted the public interest in the right to intellectual property by ensuring access to essential HIV/AIDS medicine.

17.  The public interest component of the right to intellectual property has also inspired greater flexibility in recent intellectual property legislation. For example, in 2012 the Korean Copyright Act was amended to introduce a general fair use exception which if properly interpreted could promote the public interest. Another example is in India where the Patents Amendment Act 2005, inspired by public health concerns, introduced legislative changes that ensure that only genuine inventions are recognized as patents.

18.  One of the essential attributes of a bill of rights is the necessity for a balancing of rights that is imperative when the different rights clash. The idea that human rights trump intellectual property rights characterized the early debates about the interaction of human rights and intellectual property because it was thought that there are two different values. It is evident that the fact that there is a right to intellectual property has put the question of human rights as trumps to the backburner. There is therefore no principle that when human rights interact with intellectual property a trump is imperative because intellectual property rights are contemplated through a number of rights, principal of which is constitutional property. The understanding that the public and private interests constitute the right to intellectual property is crucial in understanding the framework for the balancing of rights. From this understanding it is also important to note that the two interests that constitute the right to intellectual property find resonance in other rights. Consequently, it is often the case that when two rights are said to conflict in the area of intellectual property protection, these rights are proxies of the constitutive interests in the right to intellectual property.

19.  A principal feature of human rights, which is crucial in the balancing of rights, is that there is no hierarchy of rights. All rights come as equals to the balancing table. A number of factors assist courts in their task of balancing rights and include the nature of the competing rights, the degree of protection sought by a protected right, the conduct of the parties with respect to the rights in issue, and the means or remedy through which the protected rights could be safeguarded. A number of examples across the world illustrate the balancing of the right to intellectual property and other human rights. First in Europe the right to property protected by Art. 1 of Protocol 1 to the European Convention of Human Rights has been balanced with other fundamental rights. Case law such as Neij and Ashby Donald, are examples of the balancing of the right to property and the right to freedom of expression by European regional courts. These cases establish that copyright enforcement as well as other restrictions on the use of copyright, which are often in exercise of the exclusive rights of copyright owners, may be regarded as interferences of the freedom of expression and therefore require balancing. Laugh It Off is an example of a balancing of trademarks and freedom of expression in South Africa. Secondly the right to health has been balanced with patents and trademarks in a number of countries. In Cipla Medro a South African court balanced the right of a patent owner against the right to health. In the same country, the right to health was influential in reducing the prices of essential HIV/AIDS medicines as a result of a settlement that emerged from a suit filed against global pharmaceutical companies (TAU-GSK Settlement). The decision by a Kenyan High Court (Ochieng) to invalidate the Kenyan Anti Counterfeiting Act 2008 was largely based on the right to health. The right to health has also been balanced in challenges mounted against tobacco advertising legislation in national courts such as in the United Kingdom (British American Tobacco) Australia (JT International) and before investor state dispute settlement fora (Uruguay).

20.  One of the challenges of the right to intellectual property is the protection of traditional knowledge expressions of folklore and genetic resources of the communities of origin. If the right to intellectual property is doubtful, it is even more so for communal intellectual property. To what extent will legal systems recognize the ownership and control of communities of origin with respect to the intellectual property they produce? While this question appeared moot for a long time, the recent adoption of the United Nations Declaration of the Rights of Indigenous Peoples suggests an emerging consensus on entitlements due to the communities of origin. The exact nature and extent of a right to communal intellectual property as well as the relationship with the right to intellectual property is not clear.

21.  The challenge of the right to intellectual property is whether it will develop as a free-standing right or as part of another right, notable of which is the right to property. If it were to develop under the latter, it would appear that the intricate balance between the public and private interests far more evident in intellectual property interests would distinguish intellectual property from other interests. Whatever is the case the importance of the right to intellectual property enables a legal system to adjust and configure intellectual property protection.

Select Bibliography

• Alexy, R, and Rivers, JA, Theory of Constitutional Rights (OUP 2002).
• Benkler, Y, ‘Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain’ (1999) 74.2 New York University Law Review 355.
• Bernieri, RC, ‘Intellectual Property Rights in Bilateral Investment Treaties and Access to Medicines’ (2006) 9 Journal of World Intellectual Property 548.
• Boyle, J, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law and Contemporary Problems 32.
• Carrier, MA, ‘Cabining Intellectual Property through a Property Paradigm’ (2004) 54 Duke LJ 1.
• Chapman, A, ‘The Human Rights Implications of Intellectual Property Protection’ (2002) 5.4 Journal of International Economic Law 861.
• Correa, C, Integrating Public Health Concerns into Patent Legislation in Developing Countries (Geneva, South Centre 2000).
• Davis, G, Copyright and the Public Interest (Thomson Sweet and Maxwell London 2002).
• Geiger C, Gervais, DJ, and Senftleben, M, ‘The Three-Step-Test Revisited: How to Use the Test’s Flexibility in National Copyright Law’ (2014) 29.3 American University International Law Review 581.
• Geiger, C, ‘Constitutionalising Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union’ (2006) 37.4 IIC 371.
• Geiger, C, Griffiths, J, Senftleben, M, et al, ‘Limitations and Exceptions as Key Elements of the Legal Framework for Copyright in the European Union––Opinion of the European Copyright Society on the Judgment of the CJEU in Case C-201/13 Deckmyn’ (2015) 46 IIC 93.
• Geist, M, (ed), In the Public Interest: The Future of Canadian Copyright Law (Toronto Irwin Law 2005).
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• Helfer, LR, ‘Towards a Human Rights Framework for Intellectual Property’ (2007) 40 University of California Davis Law Review 971.
• Helfer, LR, and Austin, GW, Human Rights and Intellectual Property: Mapping the Global Interface (CUP 2011).
• Hestermeyer, HP, Human Rights and the WTO: The Case of Patents and Access to Medicines (OUP 2007).
• Hugenholtz, PB, ‘Copyright and Freedom of Expression in Europe’ in Dreyfus, RC, Zimmerman, DL and First, H, (eds), Expanding the Boundaries of Intellectual Property (OUP 2001) 343.
• Katz, E, and Hinze, G, ‘The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the US Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements’ (2009) 35 Yale Journal of International Law 24.
• Litman, J, ‘The Public Domain’ (1990) 39 Emory Law Journal 965.
• Netanel, NW, ‘Locating Copyright within the First Amendment Skein’ (2001) 54 Stanford Law Review 1.
• Nwauche, ES, ‘The Emerging Right to Communal Intellectual Property’ (2015) 19 Marquette Intellectual Property Law Review 221.
• Osei-Tutu, JJ, ‘Corporate ‘Human Rights’ to Intellectual Property Protection?’ (2015) 15 Santa Clara Law Review 1.
• Shaver, L, ‘The Right to Science and Culture’ (2010) Wisconsin Law Review 121.
• Torremans, PLC, (ed), Intellectual Property and Human Rights (Wolters Kluwer 2008).
• Yu, PK, ‘Intellectual Property in a Non-Multilateral Era’ (2012) 64 Florida Law Review 1046.
• Yu, PK, ‘Reconceptualising Intellectual Property Interests in a Human Rights Framework’ (2007) 40 UC Davis L Rev 1039.

Select Cases

• Anheuser-Busch v Portugal (Grand Chamber) (ECtHR) (11 January 2007) App No 73049/01.
• Ashby Donald v France (ECtHR) (24 November 2011) App No 36769/08.
• Balan v Moldova (ECtHR) (28 January 2008) App. No. 19247/03.
• British American Tobacco v Dept of Health [2016] EWHC 1169 (Gr Brit).
• CCH Canadian v Law Society of Upper Canada [2004] 1 SCR 339 (Can).
• Cipla Medpro v Aventis Pharma; Aventis Pharma SA [2012] ZASCA 108 (S Afr).
• Deckmyn v Vandersteen (ECJ) (3 December 2014) Case C-201/13.
• JT International SA v Commonwealth of Australia [2012] HC 43 (Austl).
• Laugh It Off v South African Breweries [2006] (1) SA 144 (CC) (S Afr).
• Minister of Health v Treatment Action Campaign [2002] 10 BCLR 1033 (CC) (S Afr).
• Neij & Sunde Kolmisoppi v Sweden (ECtHR) (19 February 2013) App No 40397/12.
• Ochieng v Attorney General Petition No 409 of 2009 (Kenya).
• Philip Morris v Uruguay ICSID Case No. ARB/10/7.
• SOCAN v Bell Canada [2012] 2 SCR 326 (Can).

Select Documents

• UN Committee on Economic, Social and Cultural Rights ‘General Comment No 21: Right of Everyone to Take Part in Cultural Life’ (21 December 2009) UN Doc E/C.12/GC/21.
• UN Committee on Economic, Social and Cultural Rights ‘General Comment No 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He or She Is the Author’ (12 January 2006) UN Doc E/C.12/GC17.