Intellectual property right = Human Right ?????

 

Intellectual property right = Human right ????? - No, Yes, and No

To begin with, what on earth are “human rights”? Human rights are the basic rights that every person has. For example, right to live, right to work, freedom from slavery, freedom to think, and so forth. Whereas, intellectual property rights are copyright, patent right, trademark right, and so forth.

In the past, as the international consensus concerning human right, United Nations adopted Universal Declaration of Human Rights (UDHR) in 1948. Human rights are listed in UDHR. Concerning intellectual property right, Article 27 (1) (2) and 23 (2) are related.

Article 27 (1)

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Article 27 (2)

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 23 (2)

Everyone, without any discrimination, has the right to equal pay for equal work.

Article 27 (1) implies that every person has the human right to share intellectual property. It means that intellectual property monopoly must be restricted. While, Article 27 (2) implies that a person who creates something has the human right with which his moral and material interest should be protected. We must realize that 27 (1) is the major part of the human right, and 27 (2) is the counter balance part to complement 27 (1). That is to say, basic human right is “Sharing intellectual property”, and supplementary right is “Getting moral and material benefit”. So, the answer for the question in title of this article is “No (for monopoly), and Yes (for creators' interest).”

Article 23 (2) may relate to patent right. Patent system grants only one inventor to monopolize a technology. In the event that two inventors invented the same invention at the same time without knowing each other, only one inventor who file it to the government earlier is granted monopoly. And the second inventor is prohibited from using his own invention although the second inventor made same effort as the first inventor. Thus, patent system is in breach of Article 23 (2). This is the basic problem of patent legislation system. On the other hand, in the copyright system, when two creators create the same thing, both persons can use his own creation made by himself. In this regard, at least, copyright system complies with human right. Patent system, not.

UDHR is merely declaration which has no strong binding force. Then, after adopting UDHR, United Nation had been making big effort to draft concrete treaty. Then, two covenants, International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) were adopted by the United Nations General Assembly in 1966 as a multilateral treaty. In ICESCR, Article 15 utters the same thing as UDHR Article 27 (1) and (2) described above. Also Article 7 (a) utters the same thing as UDHR Article 23 (2) described above. In ICCPR, there is no IPR-related concrete description about intellectual property.

Thus, concerning intellectual property, the first right is for everyone to enjoy the arts and to share in scientific advancement and its benefits. This means that we have the human right to use other persons' intellectual property. And the second right is for creators to enjoy the moral and material interests, with the duty to give the first right to other person. The third right is, according to my interpretation, equal pay (interest) for equal work (creation) concerning the efforts of inventions.

The basic spirit underlying these human rights is "hatred against monopoly".

< Glossary >

Universal Declaration of Human Rights: 世界人権宣言

International Covenant on Economic, Social and Cultural Rights: 国際人権規約のうち社会権規約（A規約）

International Covenant on Civil and Political Rights: 国際人権規約のうち自由権規約（B規約）