Dugeri Emmanuel1.0 Introduction
In the ever-evolving tapestry of the global knowledge economy, a fascinating convergence occurs where the realms of Intellectual Property Rights (IPRs) and Fundamental Human Rights intersect. This meeting of two powerful forces ignites intricate debates, weaving the fabric of legal paradigms that shape our shared future. [1]
Picture the exclusive rights bestowed upon innovators and creators juxtaposed against the canvas of universally recognized human rights – a complex interplay that raises profound questions. How do we strike the delicate balance between fueling innovation and safeguarding the broader welfare of society?
This essay embarks on a meticulous journey, a scholarly exploration delving deep into the intersection of intellectual property rights and Fundamental Human Rights. Here, we unravel the intricate relationship between these two categories of rights, navigating the nuanced landscape where potential conflicts arise. It is not merely an academic endeavour; it is an expedition into the heart of a dynamic discourse that shapes the very essence of our coexistence.
The ascendancy of Intellectual Property Rights—embracing patents, copyrights, trademarks, and trade secrets—heralds a pivotal era in fostering innovation and creative expression.[2] This study acknowledges the fact that these rights are enshrined in legal frameworks globally and nationally in Nigeria[3] and they serve as catalysts for economic growth, technological advancement, and cultural enrichment.
However, the surge in the importance of intellectual property rights beckons a critical examination of their coexistence with fundamental human rights, which underpin the very fabric of democratic societies.
In the late 1990s and early 2000s, the global community had to take a chill pill and consider the significant controversy that had popped its head regarding access to HIV/AIDS medications in developing countries.[4]
Pharmaceutical companies held patents on these drugs, making them expensive and inaccessible to many who needed them. This led to debates about the balance between protecting IP rights and ensuring access to life-saving medications which in itself has been argued strongly to be a very fundamental and inseverable part of the right to life which is a fundamental right.[5]
In response to the aforementioned debate, the United States, along with other nations implementing innovative approaches, issued an Executive Order on Access to HIV/AIDS Pharmaceutical and Medical Technologies. This order endorsed the use of compulsory licenses to enhance the availability of HIV/AIDS medicines in sub-Saharan Africa.[6]
At that moment, it seemed that a harmonious relationship was developing between these two categories of rights. However, in 2020, the world witnessed the unveiling of tension between these rights. Companies were faced with the dilemma of either retaining the benefits of the patents they held for the Covid-19 vaccines they created or relinquishing those rights to facilitate mass production and save lives.[7]
These instances represent confrontations between these rights. Consequently, this study will delve into the legal frameworks governing Intellectual Property Rights and Fundamental Human Rights. This exploration aims to establish a foundation for discussing the interrelationship that exists between these two domains.
2.0 Conceptual Clarification
2.1 Intersection
The term “intersection” has different meanings depending on the context, but generally, it refers to a point or a region where two or more things meet or cross each other.[8]
The term “intersection” has its roots in Latin and can be traced back to the following etymological components: In Latin, “inter” is a preposition that means “between” or “among.” It indicates a relationship of being situated between or among things. The suffix “-sect” is derived from the Latin word “secare,” which means “to cut” or “to divide.”
The idea behind this component is that an intersection involves a point where two or more things “cut” or “divide” each other.[9] Combining these components, the term “intersection” essentially signifies a point where different elements or entities come together, cross, or cut each other or where ‘…two roads meet or form a junction.’[10]
In the context of this discourse, “intersection” can refer to the overlap or interaction of different concepts, ideas, or rights. Precisely, the intersection of Intellectual Property Rights and Fundamental Human Rights explores how these two domains interplay and it is used metaphorically to signify the complex and multifaceted relationship between Intellectual Property Rights and Fundamental Human Rights.
2.2 Rights
The term “rights” generally refers to a set of moral or legal entitlements that individuals or groups possess, empowering them to act or be treated in certain ways without interference or hindrance.[11] Rights are fundamental principles that are considered essential for the well-being, dignity, and autonomy of individuals within a society.
These entitlements can be grounded in various contexts, including moral philosophy, legal systems, or social and cultural norms.
In Afolayan v. Ogurinde[12] the Supreme Court held that:
A right is an interest recognized and protected by law and that every right involves a threefold relation in which the owner of it stands. They threefold are a right against some person or persons; a right to some act or omission of such person or persons or a right over or to something to which the act or omission relates. Rights are things we can assert, demand or stand on
Furthermore, in Ransome Kuti v Attorney General of the Federation,[13] the Supreme Court of Nigeria made the point thus:
…Human Right is a right which stands above the ordinary law of thei land and which in fact is antecedent to political society itself…is a primary condition for a civilized existence and what has been done by our Constitution since independence is to have those rights enshrined in the Constitution so that the rights could be irritable to the extent of the immutability of the Constitution itself
The Black’s Law dictionary[14] defines a right as that which is proper in law and it includes something that is due to a person by just claim, guarantee or moral principle. Human rights are a subset of rights that are considered universal and inalienable, applying to all individuals by virtue of their humanity.[15]
These rights are often codified in international agreements and declarations, such as the Universal Declaration of Human Rights. Human rights which encompass civil, political, economic, social, and cultural rights, aiming to protect and promote the dignity and well-being of individuals globally.
While rights confer entitlements, they are often accompanied by corresponding responsibilities. For instance, the right to free speech is balanced by the responsibility to respect the rights of others and avoid harm.
In summary, “rights” encompass a wide range of entitlements that individuals or groups possess, and they play a crucial role in shaping the principles of justice, equality, and human dignity within societies. The recognition and protection of rights are fundamental to the functioning of legal and moral frameworks.
2.3 Intellectual Property Rights
Intellectual Property Rights (IPRs) refer to legal protections granted to the creators, inventors, and owners of intellectual property—intangible creations of the mind.[16] It is defined as ‘the Legal rights of property from the intellectual creations or endeavours of a person for which the laws provide protection…’[17]
These rights provide exclusive rights to individuals or entities over their intellectual creations, fostering innovation, creativity, and the development of new ideas. Intellectual property encompasses various forms of creative and inventive works, and the corresponding rights are designed to safeguard the interests of those who produce or own these creations.[18]
The main types of intellectual property rights include patents, copyrights, trademarks, trade secrets, industrial design rights, and geographical indications.[19]
2.4 Fundamental Human Rights
Fundamental human rights are inherent, inalienable entitlements and protections that every individual possesses by virtue of being human. These rights are considered essential for the dignity, freedom, and well-being of individuals, and they are typically recognized and protected by legal frameworks at national and international levels. [20]
Fundamental human rights are universal, indivisible, and interdependent, forming the foundation for just and democratic societies. They are rights of citizens that are provided for and guaranteed under the constitutions,[21] international declarations, conventions, and treaties.
In the case of Onwo v Okafor Oko,[22] the court considered the meaning of the Fundamental Human Rights and stated thus:
Fundamental Rights suggest that they are rights but some are fundamental i.e. basic rights. These basic rights are entrenched in Chapter 4 (sic) of the 1979 Constitution. Fundamental Human Rights are not peculiar to Nigeria. The European Convention on Human Rights has been in force since 1953. The UN recognizes the importance of fundamental human rights and is making strenuous efforts to ensure that these rights are protected and enforced.
These rights are articulated in documents such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Upholding and protecting fundamental human rights are central to the promotion of justice, peace, and the dignity of individuals worldwide.
Violations of these rights are often subject to legal and moral condemnation, and efforts are continually made to strengthen human rights protections globally.
3.0 Legal Frameworks of Intellectual Property Rights and Fundamental Human Right.
3.1 The International Framework
The International Framework is made up of Treaties which have been entered into by the international Community and which tends to govern the administration of Intellectual property in the legal system of the state parties. These Treaties include:
1. The World Intellectual Property Organization Convention which was signed in Stockholm, in 1967. This Treaty is the successor of the Berne Convention for the Protection of Literally and Artistic Works of 1893 and the Paris Convention for the Protection of Industrial Property of 1883. It currently administers 26 treaties for the promotion of Intellectual Property Rights.[23]
2. The World Trade Organization Agreement which was entered into by in 1994 by State Parties. This agreement took into cognizance the link between Intellectual Property and Trade. The WTO Agreement on Trade Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement) have also been included as an annex to this treaty.[24]
3. The African Regional Intellectual Property Organization was established by the Lusaka agreement and adopted on the 09 December 1976. This arrangement had as its goal the harmonization and improvement of the Intellectual Property Laws of the State Parties to this treaty.[25]
4. The African Intellectual Property Organization was birthed by the Libreville Agreement signed by the Francophone African nations in September 1962. Which is meant to ensure the protection of Intellectual Property Rights.[26]
3.2 Municipal Framework
The legal framework for the protection of intellectual property (IP) in Nigeria is primarily governed by various statutes. These laws include:
1. The Patents and Design, 2004
This Act protect inventions, granting inventors exclusive rights to make, use, and sell their creations[27] for a specified period, typically 20 years.[28] This exclusive control serves as an incentive for inventors to disclose their inventions to the public.[29] It also protects the visual design of objects, such as the shape or ornamentation of a product. This form of protection is particularly relevant to the aesthetic aspects of industrial products.
2. The Copyright Act, 2022
This Act protect original works of authorship, including literary, artistic, and musical works.[30] Copyright holders have the exclusive right to reproduce, distribute, perform, and display their works.[31] Copyright protection is automatic upon the creation of the work.
3. The Trademark Act, 2004
This Act protect symbols, names, logos, and other distinctive elements that identify and distinguish goods or services.[32] Trademark rights prevent others from using similar marks that may cause confusion among consumers.[33] It also provides for the duration which the protection will last.[34]
4. National Office for Technology Acquisition and Promotion (NOTAP) Act (Cap N62, LFN 2004)
NOTAP facilitates the acquisition, adaptation, and development of foreign technology in Nigeria. It provides for the functions and responsibilities of NOTAP in managing technology transfer agreements.[35]
4.0 Case for the Intersection of IP and Fundamental Human Rights
The intersection of intellectual property (IP) rights and fundamental human rights is a complex and evolving idea that raises important legal, ethical, and policy considerations. Intellectual property rights, such as patents, copyrights, trademarks, and trade secrets, are legal mechanisms designed to incentivize innovation, creativity, and the dissemination of knowledge.
On the other hand, fundamental human rights, as enshrined in various international and National legal frameworks, such as the Constitution of the Federal Republic of Nigeria 1999 (as amended) are rights that are considered inherent to all individuals by virtue of their humanity.
The primary interplay between Intellectual Property Rights (IPRs) and fundamental human rights is encapsulated in Article 27 of The Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). These articles assert the obligation of states to ensure everyone’s right to the protection of moral and material interests arising from scientific, literary, or artistic endeavours.[36]
This intrinsic connection highlights that while these rights are safeguarded under distinct legal frameworks, they can either be perceived as separate expressions of a broader right or, due to their significant similarities, considered too akin not to be protected within the same domain.
The ensuing discussion will delve into the nuances of this relationship, shedding light on whether these rights are better understood as distinct entities or as interconnected facets of a shared legal landscape.[37]
The inherent similarities between Fundamental Human Rights enshrined in the constitutions of nations worldwide and the protection of Intellectual Property Rights (IPRs) through various legal enactments are noteworthy. An illustrative example lies in the correlation between the right to life, which inherently encompasses the right to good health. This is evident in the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the right to life is explicitly protected. Correspondingly, within the legal framework of the Patents Act, medical and pharmaceutical products enjoy patent protection.[38]
The nexus between these rights is emphasized by the World Health Organization, asserting that the Right to Health is intricately interconnected with other fundamental rights such as the right to life.[39] It is a perspective that underscores the holistic nature of these rights, suggesting that individual protection of the right to health cannot be divorced from the broader spectrum of rights, particularly the fundamental right to life.
Henceforth, it is respectfully contended that the safeguard provided by fundamental human rights within the Constitution of the Federal Republic of Nigeria 1999 (as amended)[40] bears resemblance to the patent protection extended to inventors contributing to healthcare. This alignment is crucial because, without such protection, these healthcare innovations risk either dilution or fading into obscurity, directly impacting the fundamental right and access to adequate healthcare.
Moreover, the Constitution, in Section 39 of the CFRN 1999, guarantees the Right to Freedom of Expression. In the landmark case of IGP v. ANPP[41], the Court of Appeal underscored freedom of expression as the cornerstone of democracy. Intriguingly, this cherished freedom, enshrined in the CFRN 1999, finds additional fortification in both the Copyright Act and the Patents Act.
Examining these legal instruments closely reveals a shared objective: the protection and encouragement of citizens’ rights to express themselves freely and innovate. In essence, these rights, regardless of their legal source, converge with the common aim of empowering citizens to express themselves freely and creatively.
Furthermore, it is imperative to highlight that the right to privacy, safeguarded under Section 37 of the CFRN 1999 and supported by judicial precedents like P.P (Nig. Ltd) v Olaghere,[42] mirrors the protection accorded to Trade secrets. The latter, serving as the foundation upon which numerous businesses have thrived, operates similarly to the right to privacy by ensuring the confidentiality of business secrets that provide a competitive edge.
Take Coca-Cola Company for instance, which is renowned not only for its iconic beverage but also for the well-guarded secrecy surrounding its formula. The tale of the Coca-Cola recipe is steeped in mystery and intrigue, contributing to the brand’s allure and mystique.
In 1886, Dr. John Stith Pemberton, a pharmacist in Atlanta, Georgia, concocted a caramel-coloured syrup with a unique flavour. He initially sold the syrup as a tonic with claimed medicinal benefits. Asa Griggs Candler later acquired the rights to the formula, founding The Coca-Cola Company in 1892.[43]
Candler, recognizing the immense potential of the beverage, was adamant about protecting the formula as a trade secret. In 1919, the company was sold, and the secret formula was reportedly transferred via a handwritten note. Since then, only a handful of individuals have been privy to the complete formula at any given time.
The recipe’s secrecy is maintained through a combination of limited access, stringent security measures, and a carefully orchestrated process. The formula is said to be stored in a vault at the World of Coca-Cola Museum in Atlanta. The few individuals who know the complete formula are reportedly prohibited from traveling together, ensuring that the secret remains closely guarded.
The right that has availed Coca-Cola over the years to be able to protect and guard the secrecy of their most prized and cherished formula can be seen as only a reinforcement of the right to privacy which is a fundamental human right.[44]
The striking parallels between these two categories of rights, as expounded in the preceding discussion, underscore the necessity for them to be shielded under a unified framework. Consequently, advocating for the elevation and protection of Intellectual Property Rights as a Fundamental Human Right within the CFRN 1999 emerges as a pertinent consideration.
Alternatively, the interpretation and expansion of Fundamental Human Rights by the courts to encompass Intellectual Property Rights could further harmonize these intertwined elements of legal protection. This approach would not only acknowledge the undeniable similarities but also reinforce the interconnectedness of these rights in the ever-evolving legal landscape.
5.0 IP Rights as an Obstacle to Fundamental Human Right
In the legal realm of the enforcement of Intellectual Property Rights, there are instances where the enforcement of the Fundamental Human Rights will birth several obstacles inhibiting the efficiency of the Fundamental Human Rights. These instances will be examined hereinafter for a proper appreciation of this facet of the study.
Within the realm of science, there is a growing trend of privatization and restriction of scientific publications. Some researchers deliberately delay the release of their findings and conceal information to safeguard their intellectual property. Instead of serving as an incentive, intellectual property becomes a significant impediment to scientific progress.
The proliferation of patents and other intellectual rights among a large number of individuals leads to a situation where everyone hinders one another. Consequently, intellectual property not only diminishes innovation but also limits the availability of products.[45]
Moreover, intellectual property poses a barrier to another fundamental human right: the right to health. For instance, patent holders often set prices significantly higher than generic alternatives, resulting in a considerable portion of the population lacking access to essential and appropriate medicines, particularly in developing nations.
The 2001 WTO Declaration on the TRIPS agreement and public health reaffirmed the rights of member states to make use of all flexibilities in the TRIPS agreement to protect public health, including compulsory licenses. More recently, in the 2021 Political Declaration on HIV/AIDS, countries committed to make use of TRIPS flexibilities, specifically geared to promoting access to medicines.[46]
Furthermore, the right to food which is also and aspect of the right to life is compromised as some major companies acquire extensive patents, establishing a substantial monopoly over critical plant genomes.
IP rights are often considered a form of property rights. Individuals or organizations are granted exclusive rights to their creations or inventions for a limited time. This limited period of time so granted is a limitation on the right to freedom of ownership of property as guaranteed by law and practice.
Also, the access to knowledge is considered a fundamental human right. Balancing the rights of creators with the need for wider access to information is crucial. This is owing to the fact that IP laws often operate in such a way that it limits the availability of literally works because it limits the reproduction and distribution of expressive works to protect the rights of creators.
Also, freedom of expression is a Fundamental Human Right protected under section 37 of the CFRN 1999 and as such restrictions on the use of copyrighted materials may raise concerns about limiting the free flow of information. Copyright and related rights protect cultural expressions, but they may also restrict the use and adaptation of traditional cultural knowledge.
In conclusion, it is apt to assert that intellectual property often obstructs the essence of human rights. However, a community study of the two classes of rights will reveal to us the fact that while there are discrepancies in the enforcement of the two categories of Rights, those discrepancies are only mere limitations that do not affect the very core substance that renders these rights similar. [47]
6.0 Recommendation
Consequent upon this study, the following recommendations have been deduced and presented for adoption:
6.1 Governments should strive to align intellectual property laws with international human rights standards, ensuring that the protection of IP rights does not unduly infringe upon fundamental human rights.
6.2 Policymakers should explore mechanisms to enhance access to knowledge, including considering limitations and exceptions to IP rights for educational, research, and public interest purposes.
6.3 Government should foster international cooperation in technology transfer, especially in areas such as pharmaceuticals and renewable energy, to ensure that the benefits of innovation are shared globally and not limited by the strict adherence to Intellectual Property Rights. Capacity-building initiatives can strengthen innovation ecosystems in developing nations.
6.4 Government should strive for a balanced approach to IP enforcement, ensuring that measures to protect IP rights are proportional and do not lead to unintended restrictions on freedom of expression, access to information, or other fundamental rights.
By adopting these recommendations, policymakers and stakeholders can contribute to a more balanced and equitable framework that upholds both intellectual property rights and fundamental human rights, fostering innovation while respecting the principles of inclusivity, access, and fairness.
Conclusion
In conclusion, the intersection of intellectual property (IP) rights and fundamental human rights presents a multifaceted and dynamic challenge across jurisdictions. The delicate balance between fostering innovation and creativity through robust IP protection while safeguarding Fundamental Human Rights, such as freedom of expression, access to knowledge, and cultural rights, requires thoughtful consideration and continuous dialogue.
In this global landscape, ongoing legal developments, technological advancements, and shifts in societal norms continue to shape the evolution of the IP and human rights nexus. Courts, policymakers, and international organizations play pivotal roles in navigating this intricate terrain, seeking to strike an equilibrium that promotes innovation, respects creators’ rights, and ensures equitable access to knowledge and cultural resources.
As we move forward, it is crucial to foster an inclusive and interdisciplinary dialogue involving legal, ethical, economic, and social perspectives. This collaborative effort will contribute to the development of nuanced and adaptive legal frameworks that address emerging challenges, uphold human rights principles, and promote a balanced and equitable global innovation ecosystem.
References and citations.
[1] P. Cullet, ‘Human Rights and Intellectual Property Rights: Need for a new Perspective’ International Environmental Law Research Centre [2004]4(1)1-6
[2] ibid
[3] Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999(as amended)
[4] UNAIDS Press Release, “UNAIDS Calls on G8 for Massive Increase in Resources to Fight AIDS”, Geneva, July 20, 2000 <at www.unaids.org/whatsnews/press/eng/geneva200700.html> accessed on 05 January 2024
[5]B. Hirschel, ‘Progress and Problems in the Fight Against AIDS’ New England Journal of Medicine [1998] 338(13) 906-908
[6] Executive Order 13155 of May 10, 2000
[7] E. 2000 < Powers inch Closer to Agreement to waive Covid Vaccine Patents’ The Guardian (London, 16 March 2022) < Global powers inch closer to agreement to waive Covid vaccine patents | Vaccines and immunisation | The Guardian > accessed on 05 January 2024
[8] B.A Garner, Black’s Law Dictionary (10th Edition, Minnesota: West Publishing Co, 2009)
[9] D.R. Harper, Online Etymology Dictionary (1st Edition, Mississippi: Dan McCormack Publishing Co, 2000) < https://www.etymonline.com/word/Intersect> accessed 03 January 2023
[10] S.I. Nichi, Nigerian Law Dictionary (3rd Edition, Abuja: Greenwood Publishing Co, 2022) 982.
[11] J. Rehman, International Human Rights Law (2nd edition, Pearson Education Ltd, 2010) 3.
[12] (1990) NWLR (Pt. 127) P.369
[13] [1995] 2 NWLR (Pt 6) 211 @ 230.
[14] B A Garner, Black’s Law Dictionary (10th Edition, Minnesota: West Publishing Co, 2009)
[15] Shaw M. N., International Law (7th Edition, Cambridge University Press, 2014) 195
[16] O. Oyewunmi,’Nigerian Law of Intellectual Property, (Unilag Press 2015) 4
[17] S.I. Nichi, Nigerian Law Dictionary (3rd Edition, Abuja: Greenwood Publishing Co, 2022) 959
[18] T Adekola and S Eze, ‘Intellectual Property Rights in Nigeria: A Critical Examination of the Activities of the Nigerian Copyright Commission’ Journal of Law, Policy & Globalization [2015] 35(1)56
[19] L.C Becker, ‘Deserving to own Intellectual Property’, Chicago-Kent Law Review [1993]68(2)609-629
[20] The United Nations Declaration on Human Rights 1948 and Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
[21] S.I. Nichi, Nigerian Law Dictionary (3rd Edition, Abuja: Greenwood Publishing Co, 2022) 791
[22] [1996] 6 NWLR (Pt. 456) 584.
[23] D.O Oriakhogba, I.A Olubiyi, Intellectual Property Law in Nigeria: Emerging Trends, Theories and Practice (2nd Edition, Paclerd Press Limited, Benin-City, 2023) 16
[24] ibid 17
[25] ibid 19
[26] ibid 21
[27] ibid 285
[28] Section 7(1) of Patents and Design Act, Cap P2, Laws of the Federation of Nigeria, 2004. ; Pfizer v Polyking Pharmaceuticals Ltd & Anor (2003) 4 IPLR 215
[29] L.C Becker, ‘Deserving to own Intellectual Property’, Chicago-Kent Law Review [1993]68(2)609-629
[30] Section 2 Copy Right Act, 2022 (Act No.8)
[31] ibid Section 14
[32] Section 9-13 of the Trademark Act, Cap 436 Laws of the Federation of Nigeria, 2004
[33] ibid Section 5
[34] ibid Section 22
[35] Available at < Updated Requirements for the Registration of Technology Transfer Agreements – NOTAP> accessed 05 January 2024
[36] P. Cullet, ‘Human Rights and Intellectual Property Rights: Need for a new Perspective’ International Environmental Law Research Centre [2004]4(1)1-6
[37] ibid
[38] Diamond v. Chakrabarty, (1980)447 US 303
[39] Available at < https:// www.Health is a fundamental human right (who.int)> accessed on 05 January 2024
[40] Section 33 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Right to life
[41] (2007) LCN/2575 (CA)
[42] (2019) 2 NWLR (pt. 1657) 569
[43] S. Byala, ‘Coca-Cola in Africa: A long History full of Unexpected Twists and Turns, Sunday Times (London, 03 January 2024)
[44] Available at < Here’s What’s Really In The Secret Ingredients Of Coca-Cola (mashed.com) > accessed on 05 January 2024
[45] V. Heins, ‘Human Rights, Intellectual Property, and Struggles for Recognistion’ Human Rights Review [2007]9 (1) 213-232.
[46] ibid
[47] Available at<https:// www. IP Rights and Human Rights (Chapter 3) – The Right to Science (cambridge.org) > accessed on 05 January 2024.s
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