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Copyright © 1999 The Johns Hopkins University Press. All rights reserved.
Human Rights Quarterly 21.1 (1999) 156-178
Access provided by University Of Nevada , Reno
Intellectual Property: A Universal Human Right?
Robert L. Ostergard, Jr. *
I. Introduction
Given the ever-widening acceptance of a right to protection of intellectual property
(IP), one might assume that there is at least implicitly an equally broad and
agreed upon rationale or justification for this right. This, however, is not the case.
Among those who write on the subject, there are two dominant, and not at all
consistent, lines of reasoning. John Locke's labor theory of property, one of the
foundations of traditional property rights in the modern world, is a logical starting
point for attempts to justify intellectual property rights (IPR), that is, the protection
of exclusive ownership in intangible objects that acquire their value mainly from
creative efforts. 1 The second justification for IPR is derived from a traditional
doctrine of [End Page 156] utilitarian inference, whereby the right to property is
granted based on maximizing the benefits society can obtain. 2 Although there
are zones of overlap between these two lines of reasoning, even if they are taken
together and their zones of disagreement ignored, they do not constitute an
adequate or coherent prescriptive theory for the recognition of IP rights. Without a
logical foundation for justifying IPR, their consideration as a basic human right
seems untenable. Thus, this article presents an alternative argument for the
justification of IPR and its manifestation as a human right.
Although it is clear that the most frequently offered justifications for a right to IP are
anchored in relatively modern theoretical arguments, there are substantially older
historical precedents for this policy. Intellectual property issues date to the
Chinese Zhou dynasty (1122 BC), when concern arose for commodity
identification. 3 By AD 835, the Wenzong Emperor barred the unauthorized
reproduction of documents, calendars, and other items related to prognostication.
4 In the Western world, IPR in the form of patents came into existence around
1500 in Venice and spread to most of the major European powers by 1550, 5
more than a century before John Locke's work on private property. Gradually,
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governments recognized rights that owners had to their ideas. Subsequently,
states adapted IPR to accommodate the increasingly expansive growth of
technological innovations. In the modern era, the claim to IPR has evolved from a
state-granted right to a universal human right without substantial scrutiny.
This article proposes an alternative view of IPR protection: that not all IPR should
be justified. Because the state's responsibility to provide for people's physical
welfare takes precedence over an individual's right to profit, the article makes two
explicit arguments. The first is that there exists a hierarchy of intellectual objects
based on a generally perceived notion of physical welfare. The second is that
when discussing IPR, the emphasis must not be exclusively on the rights of
producers; IPR must also be examined from the perspective of consumers and
the national welfare. Both of these arguments focus on nations' attempts to fulfill
their citizens' basic needs, which are largely grounded in technologies and
processes that [End Page 157] sustain physical well-being. Consequently, if
certain individuals have exclusive control of established technologies, other
individuals may be deprived of basic products that could contribute to their
betterment.
Before elaborating on the arguments outlined above, this article explores the
differences between traditional property and IP, as well as the two traditional
theories used to justify IP rights. The article also considers the role that IP plays in
contributing to people's welfare, and concludes with an examination of the conflict
that exists between developed countries that favor strong universal IPR
protection, and the developing countries that favor greater access to technologies
for all nations based on human rights considerations.
II. Property Rights and Intellectual Property Theory
Property, in one form or another, has been a concern in many of history's
struggles for fundamental rights. The Magna Carta (1215), 6 the US Declaration of
Independence (1776), 7 the French Declaration of the Rights of Man and Citizen
(1789), 8 and the Universal Declaration of Human Rights (1948) 9 all recognize
property rights in some form. Generally, this right to property refers to tangible
items, such as land, business establishments, housing, and other resources. Yet
there is another form of property, consisting of intangible items such as
intellectual objects. 10 The theoretical justification for intangible property has
been grounded in two traditional theories: Locke's labor theory of property, and
utilitarianism. [End Page 158]
A. John Locke's Labor Theory of Property
John Locke justified property rights through labor. In his view, objects produced
by an individual through the mixing of labor with resources are the property of that
individual alone. 11 Locke's theory of property also contains two limitations on the
acquisition of property. The first is on the amount of property that can be
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appropriated: "enough and as good left in common for others." 12 In other words,
so long as others are not made worse off by the acquisition, there is no limit on
the amount that may be appropriated. The second limitation relates to the amount
of an item that can be used: a person should not take more of an object than can
be used before it spoils. 13
Locke's labor theory of property is problematic, however, when used to justify IP
rights. In particular, the question of ownership in the cumulative inventive process
poses a serious problem. For example, technology that is developed by one
person is often employed in new products without ownership privileges being
granted to its creator. Similarly, literary works often build on the fruits of other
efforts. Because their labor is embodied in the new product, are the prior
inventors and writers entitled to partial ownership of the object? If past inventors
used their labor to create the object, does their right to property diminish if others
utilize the product? 14 As these questions suggest, the cumulative process of
inventions complicates the question of ownership if labor is used to justify IP
rights. Therefore, an alternative view of Locke's labor theory is needed.
One of the most frequently cited analyses of Locke's labor theory of property is
that of Robert Nozick. Nozick points out that while mixing one's labor with
something could bring about ownership of the object, it could also result in a loss
of one's labor. 15 That is, why should the act of mixing labor justify the ownership
of previously unowned property? He uses the example of pouring juice into the
seas and then asking whether now he owns the sea or has lost his juice. 16
Ultimately, Nozick rejects Locke's emphasis on labor in favor of a distribution of
property based on Locke's first proviso. 17 [End Page 159]
Nozick interprets Locke's first proviso as meaning that others, no longer free to
use the appropriated property, should not be made worse off than before the
property was appropriated. 18 At the center of the "worse-off" argument is the
question: worse off compared to what? Individuals are "worse-off," according to
Nozick, if: (1) they lose the opportunity to improve their situation by a particular
appropriation; or (2) they are no longer able to use freely what they could
previously use. 19 Under a strict interpretation of the "worse-off" condition, when a
person has nothing to counter the loss, then the person is "worse-off" under both
premises. A weaker interpretation of being "worse-off" would ignore the second
premise and be based exclusively on the first. It may be possible, according to
Nozick, that although individuals could no longer appropriate an object, they
would still be able to use it. 20 Despite this, people would still be "worse-off"
because of restrictions on access to the item. Furthermore, he contends that any
theory of justice in the acquisition of property must include this second proviso. 21
Nozick further argues that a baseline for the comparison of "worse-off" must be
established. For instance, he applies this critical notion of a baseline directly to
intellectual objects, which are ipso facto private property in his scheme. 22 He
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tells the story of a medical researcher who creates a new drug to treat a disease.
23 The researcher refuses to sell the substance unless exclusive individual
control over the product is guaranteed. According to Nozick, this situation does
not violate the first Lockean proviso. The baseline in this example is the absolute
condition of people before the discovery. If they do not have access to the
substance, their situation is unchanged: "The others easily can possess the same
materials he appropriated; the researcher's appropriation or purchase of
chemicals didn't make those chemicals scarce in a way so as to violate the
Lockean proviso." 24 Nozick contends that the proviso focuses on a particular way
that "appropriative actions affect others, and not on the structure of the situation
that results." 25 His concern is that people not be harmed, that their rights not be
violated. But Nozick's conception of harm is narrow, focusing on harm that might
be done to the property owner. Can harm be in a relative [End Page 160] sense?
That is, can people be harmed when compared to others under the same
circumstances? Can we expand the concept to include the situation that results?
This seems like a fair analysis because the law and legal structures must
consider the collective good and interest. Hence, it is the relative effects resulting
from the appropriation with which we must concern ourselves. To understand this
in IPR, some additional information is needed.
Suppose the researcher is able to dictate the terms for the sale of the substance
because the government has granted a patent. The patent provides the
researcher with an advantage, specifically a monopoly advantage, in selling the
product. Nozick implies that people, if they possess the right compounds, are free
to make the substance. However, the patent legally blocks others from freely
producing the substance themselves. Having a monopoly, the researcher is able
to charge the greatest price that the market can sustain. Consequently, some will
be able to afford the substance while others will not. If we use Nozick's baseline of
comparison, some individuals will be made better off. They will be able to
purchase the elixir, to consume it, and to rid themselves of the malady. Others will
see no change in their condition because they may not be able to obtain the
substance. 26
If the purpose of IPR is simply to protect an idea, then this has been achieved;
however, nothing is said about the rights of other people to use this information
except under the monopoly conditions dictated by the owner. If the purpose of the
monopoly right is to make people's lives better, then one must look at the effects
that this right has on all people. If the substance is available only to a segment of
the population that needs it, then the remaining population is "worse-off" relative
to those to whom the substance is available. So, in this sense, people in need of
the substance who are unable to acquire it are "worse-off." 27 Conceived of in this
manner, IPR cannot be justified because people have been made "worse-off" in a
relative sense.
Nozick's main concern is that resources not be monopolized. Yet herein lies the
contradiction between Nozick's proviso and IPR because IP rights promote
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monopolies and restrict access. Without IPR, if the researcher [End Page 161]
releases the knowledge publicly, then a contribution to the general pool of
knowledge has been made. Anybody then can use the formula to produce the
substance that will benefit those who need it. By restricting access to the formula
as IPR do, the researcher is guaranteed a monopoly on production. The other
side of this debate is that without IPR protection, the researcher would not release
the information and nobody would benefit. Such an argument leads to the
question of inventors' rights.
Although an inventor's rights must be recognized in any IPR scheme, they must
be juxtaposed with the rights of those who live with the consequences of IPR
protection. In short, one must ask whether the institution of IPR is just when it
provides benefits to a select few. While IPR are fair in that everybody is entitled to
obtain IPR protection, the resulting product control produces distinctions among
those who may need the product. This is shown clearly in Nozick's research
example.
Access to advantages produced by IPR protection is thus based on financial
resources, which one would expect in a competitive economy. This system is
satisfactory when one is concerned about the distribution of nonessential items,
that is, objects that do not affect people's physical well-being. However, IPR
systems tend to treat all intellectual objects equally; they fail to recognize that not
all intellectual objects are essential. For instance, people would be no worse off if
they were monetarily restricted from buying a new music compact disc. But those
who are monetarily restricted from buying a new drug that can save their lives are
worse off than those who are not restricted. Some may contend that the social
welfare net is intended to aid those who cannot afford such expenses. However,
even if that is true, when an institution is expanded globally (as IP rights have
been), the potential inequalities are more readily exposed. Where IPR systems
exist in developing nations, for example, limited resources may hinder efforts to
aid those in need of product access.
In summary, Locke's labor theory of property, and its libertarian interpretation, fail
to present a compelling reason to justify the existence of IPR to protect all
intellectual objects. This conclusion is based on conditions present in that theory
that negate the justification for property rights. Locke's labor theory does not
account for the cumulative inventive process that assigns sole ownership to those
who utilize others' prior work. Nozick's interpretation of Locke, based on the first
Lockean proviso, insufficiently justifies IPR because people potentially are made
relatively worse off under IPR systems, particularly as a result of unequal access
to resources and products both in the domestic and global markets. Thus, one
must look elsewhere in the Western tradition if IP rights are to be justified under
property theories. One possible approach is utilitarianism. [End Page 162]
B. Utilitarians and IPR
Canadian philosopher Will Kymlicka suggests that utilitarianism conforms to our
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inner sense of social responsibility; that is, the idea that the well-being of humans
matters, and moral rules must be subjected to tests for their consequences on
human well-being. 28 Kymlicka argues that the morally best acts are the ones that
maximize human welfare. 29 Along these same lines, political theorist John Rawls
has noted that "the principle for society is to advance as far as possible the
welfare of the group, to realize to the greatest extent the comprehensive system of
desire arrived at from the desires of its members." 30 In recent years, however, the
utilitarian approach in general has come under attack from a number of scholars.
The criticism is wide and varied, with the central theme being that utilitarianism
does not take into account differences among individuals. 31 As Rawls points out,
"utilitarianism is not individualistic . . . in that, by conflating all systems of desires, it
applies to society the principle of choice to one man." 32 Utilitarianism subjects
individual rights obtained through equality and fairness to social interests. A net
utility calculus formulates utilitarian social policy, which is troubling, particularly if
a policy is targeted at a population segment. As economist Amartya Sen argues,
the elimination of society's ills is justified in utility theory only if there is a net utility
through their removal. 33 Of course, Sen's refutation has direct consequences for
IP rights. The burden on utilitarians is to justify property rights based on an overall
improvement in the general welfare.
The utilitarians' argument is that IP rights provide incentives to produce new
intellectual objects. 34 By assigning property rights to the creators, an incentive is
in place for people to undertake the expense and time to invent new products or
develop new ideas. If IPR are removed, the argument goes, then there will be no
incentive to produce intellectual objects because people will be free to copy the
object without compensating the creator. The utilitarian argument weighs the
long-term development of the society against the short-term drawback of
assigning exclusive production rights to a creator. Yet, it is not clear that the
long-term benefits outweigh the short-term drawbacks associated with the
monopoly right. These drawbacks [End Page 163] include problems with the
diffusion of technology and the varying levels of dependence that intellectual
objects have on IPR protection.
The diffusion of intellectual objects is slowed dramatically under a strict IPR
protection system. Intellectual property laws are meant to provide creators a time
period to recover their initial investment and make a modest profit in exchange for
the knowledge. 35 As such, Edwin Hettinger sees a paradox in the utilitarian
argument: the diffusion of or access to the product or method is restricted so that
the production, availability, and use of new intellectual objects are assured for the
future. 36 The result is that progress is hampered.
Progress may be stalled further by the abuse of property rights that results from
the buying and selling of patents, copyrights, and trademarks so that competition
in the production of a commodity is eliminated. Producers then have the exclusive
right to produce their product at a price that the market can sustain without
competing against other products. Without competition, producers can charge
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artificially high monopoly prices for the product for the duration of the property
right protection while being shielded from competitive pressures that force
companies into product improvements.
The utilitarian justification also implies that all products and people are equally
dependent upon IPR protection. Yet, this does not appear to be the case. For
example, movies are more dependent on protection than academic writing, while
small investors tend to rely on IPR more than large corporations. 37 In essence,
not all products or producers are equally dependent on formal IPR protection.
This, however, begs the question: why do those less reliant on IPR protection
keep producing? One possible answer is that the short-term profits generated by
being first in the market with a product are incentive enough to engage in the
productive process. As Hettinger notes, product market share is more important to
large corporations than long-term IPR protection. 38 Moreover, IP laws have been
used more recently not as part of a social contract between creators and society,
but as a tool for securing market share in an increasingly competitive global
economy. 39 This is especially true for producers whose intellectual objects are
heavily dependent upon IPR protection. [End Page 164]
The market share issue draws one back to the utilitarian argument that IPR
provide an incentive for invention and production, which ultimately promotes
economic growth. Although the incentives argument should be viewed with some
skepticism, it should not be totally dismissed. Indeed, IPR can induce creative
activity and production of some intellectual objects, increasing the immediate
availability of products, particularly in fields that require long training or have high
research costs. But this does not necessarily imply a long-term benefit of
economic progress. The utilitarian argument that strong IPR protection leads to
economic progress is deeply rooted in the Western theoretical tradition that
emphasizes private property and its importance to Western economic
development. However, the focus on private property is misplaced and such
attention should instead be directed to the free exchange of ideas and creative
activity that has characterized much of the West's economic growth and
development.
This issue is most important because it is at the core of the dispute between the
industrialized countries of the North and the developing nations of the South. The
North has argued that strong IPR protection will increase any country's economic
progress. 40 The South generally has resisted this argument, asserting that
access is needed to specific technologies that aid the development process. 41
This claim has historical support. The United States explicitly prohibited the
protection of foreign works for the first century of its existence. 42 Great Britain,
too, has borrowed ideas and inventions from abroad. 43 In contemporary times,
China has produced impressive levels of economic growth initially with lax IPR
laws and currently with moderately strong, but poorly enforced IPR laws. 44 Thus,
it would appear that some doubt is warranted regarding the importance of strong
IPR for economic progress. In essence, the utilitarian claims that the long-term
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benefits outweigh the short-term costs of IPR protection are weak. [End Page
165]
C. The Nature of Property and Intellectual Property
Thus far, this article has shown how the traditional justifications of property,
namely labor and utilitarian, fare poorly when applied to IP. Some additional
reasons for this can be seen in the distinction between traditional property and IP.
1. Possession
Traditional property theory holds that property is not associated exclusively with
individual possession. Rather, property is a relationship between the owner and
other individuals relative to some item. This relationship is a right against others
that can be exercised to protect the owner's property. In the case of IP, the state
must guarantee the exclusive ownership of the idea or work, artificially creating
the relationship between IP owners and others. For instance, in a Lockean state
of nature where the power of law remains in the hands of individuals, property
and IP are different. Formal law is not needed to protect that which is claimed by
people; people can protect their property from encroachment by others.
Intellectual property differs from simple property in this sense because there is no
way to protect it. If plans for a new invention are disclosed, there is no way to
prevent a person from utilizing the idea. The only way to protect IP is to keep it
secret. In this way, IP is nonexclusive because it cannot prevent others from using
the property once it is disclosed.
2. Supply
Another distinction between property and IP is supply. Using the Lockean state of
nature as an example again, no one can use land that has already been
appropriated. Furthermore, the supply of land is finite. Contrast this with a formula
for a pharmaceutical product. Individuals can use that formula repeatedly and its
supply will remain unchanged. People can pass the formula by word of mouth or
by printing it and giving it away; the idea's supply will never dwindle. Moreover,
the cost of an additional user of an intellectual object is zero and, as Hettinger
points out, modern technology can instantaneously make an intellectual object
available with few limitations. 45 Without civil law, therefore, IP differs
fundamentally from simple property. Society establishes laws to protect people's
property from others. These laws assign rights to exclude others from using one's
property. [End Page 166] Similarly, IP rights give individuals the right to exclude
others from using their ideas, works, and inventions.
3. Exclusive Control
In essence, what IPR laws do is give the creator the ability to alter the essential
nature of many intellectual objects by eliminating the nonexclusive characteristic.
To this end, IP rights grant to individuals exclusive control over some object
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(whether it is literary, mechanical, or procedural). Intellectual property rights allow
the possessor to exclude others, to control the output, and to establish a
monopoly price within the limits that product demand will allow. 46 People who
would otherwise be free to implement another's idea must now, at minimum,
receive permission from and possibly pay the owner to do so. The supply of the
object has thus been artificially limited by the introduction of exclusive control
over distribution. As Hettinger points out, it is the nonexcludable characteristic of
intellectual objects that must be kept in mind when trying to justify IP rights. 47 As
such, the burden on those who support strong, unlimited IPR is to show that the
elimination of the nonexclusive nature of intellectual objects is justified.
The granting of exclusive control over intellectual objects is an attempt to alter
their inherent structure; intellectual objects, by their nature, are nonexclusive.
Traditional theories of property reflect ideas on the distribution of diminishable,
perishable, or scarce property--characteristics that do not apply to intellectual
objects. These objects are only made scarce by artificially imposed means,
namely IP rights.
In questioning the labor and utilitarian justifications for IPR, and in particular the
latter account, an implicit argument is being made about the construct of IPR laws
as a social policy. The focus in adopting these laws must be on the impact that an
IPR system will have on individuals, not society. An alternative approach that
emphasizes individual needs is one possibility. However, any approach must
balance the rights of creators with the needs of others. It is to these ideas that this
article now turns.
III. Intellectual Property Rights Reconsidered
The utilitarian conception of IPR is centered on the benefits that society can
derive by protecting IP. 48 However, as argued above, this approach neglects
[End Page 167] the effects of these policies on individuals. The central focus of
both the utilitarian arguments for society's betterment, and the refutation of the
utilitarian approach based on IPR's effects on individuals, is on society's
development. But these two approaches need not necessarily be exogenous. By
reconceptualizing society's development at the individual level instead of at the
national level, these two views can be reconciled.
A. Capability Theory and Economic Development
Traditionally, economic development has been explored as a country-specific
phenomenon. But some have challenged this view. 49 Development can be
considered to be an expansion of people's capabilities. 50 This conception of
development concentrates on individuals rather than all of society, and is
carefully constructed to incorporate three often-cited definitions of development:
expansion of commodities, an increase in utility, and basic needs. 51 This
"capabilities approach" to economic development is an attempt to integrate all of
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these components while at the same time demonstrating the deficiencies of
defining development solely within the context of one of these concepts.
Capability theorists define people's capabilities in terms of their functionings,
which "vary from such elementary physical [needs] as being well-nourished,
being adequately clothed and sheltered, avoiding preventable morbidity, and so
forth, to more complex social achievements such as taking part in the life of a
community, being able to appear in public without shame, and so on." 52
Complex social achievements are closely linked to societal norms and will not be
addressed here. For purposes of this article, the concern is with physical
functionings or physical well-being, both of which may be related to societal
norms, but are also subject to a series of other conditions, such as entitlement
systems. 53
Sen has asserted that a person's capabilities depend, though not entirely, on
access to commodities, which are their entitlement. 54 The [End Page 168]
entitlement a person has reflects the rules of the entitlement system. In this sense,
IPR are a subset of the rules of the entitlement system. Yet one important proviso
must be made with regard to having access to commodities that affect one's
physical well-being: the emphasis is not on the actual possession of the object
itself, but rather on the accessibility of the commodity. For instance, one might
consider the case of a doctor patenting a medical procedure and demanding
royalties for every time the procedure is used. An individual might be able to
afford the operation itself, compensation for the doctor, nursing staff, hospital stay,
etc., but the procedure may be made unaffordable by the additional costs of the
royalties. 55 The entitlement system in this instance makes the procedure
inaccessible to the individual.
The importance of access to commodities is illustrated further by two examples:
music and medicine. Copyright prohibits duplication in the case of music, while
patents generally protect medicines and related compounds. The music producer
sets a price for the compact disc and those who can afford the music purchase it.
Nobody has the right to produce that music other than the artist and the
production company. Similarly, medicines are produced by a manufacturer who
establishes a price for the product. Those who need to use the medicines may
purchase it at that price. People do not suffer a tremendous physical loss if solely
one company produces the latest music compact discs; if people cannot afford the
music, they may not buy it or, alternatively, they may seek a different type of music
to purchase. The free market masterfully supports substitutability of products in
this instance. The medicine example is more complex and deserves greater
attention.
Without much argument, medicines can be classified as important to the
improvement of people's physical well-being; they are important for individuals to
survive and to live better than they could otherwise. Unlike compact discs, the
restricted production of particular medicines has an impact on people. Often the
demand for a particular medicine is inelastic--people cannot find alternatives and
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they must purchase the product even if the cost escalates. If they cannot afford the
manufacturer's price, they must do without the product, compromising their
well-being.
The recent example of the human immunodeficiency virus (HIV) "cocktail"
treatment explicitly illustrates this point. Several combinations of [End Page 169]
drugs have shown limited promise of slowing the onslaught of HIV. 56 The drugs
appear to slow the viral attack, but the cost of the drug combination is estimated at
$10,000 per year. 57 At this price, the discovery is virtually meaningless to the
many people infected with HIV around the world, particularly those in developing
countries. One could easily argue that this is not an issue of IPR, but rather an
issue of social welfare policy; if people cannot afford health care, it is incumbent
upon the government to help them. However, this burden cannot be imposed
upon governments that do not even have the economic base to feed their own
people. Moreover, what this amounts to is the state subsidizing industry profits.
The state is put in the bizarre circumstance of providing financial assistance to
people who cannot afford medicines because the state granted the firm a
monopoly on the production of the medicine.
As the music and medicine examples show, it is difficult to assume that all
intellectual objects are equal in their importance to people. The existence of a
hierarchy of intellectual objects is evident, but its ordering is different for each
person. We cannot even assume that all individuals value the same objects as
important or necessary to their physical well-being. Nonetheless, the critical point
is that whatever property is needed to maintain an individual's physical well-being
must be accessible if all human beings are to be permitted to achieve their full
potential.
B. Physical Well-Being and Intellectual Property Rights
With respect to the IPR issue, developed countries have more resources
available to adopt any combination of policies that will satisfy both those claiming
IPR in a particular object, and those who may need to use the object to maintain
their physical well-being. The state, in this case, may adopt IPR protection while
implementing a social welfare policy that aids those who cannot afford the
product if it is needed for their physical well-being. While this may indirectly
subsidize industry, it is one way for the state to balance competing interests.
Developing countries, on the other hand, are restricted in the policies they can
adopt because of financial constraints. If developing nations adopt IPR policies, it
is possible that intellectual objects that people need will be priced outside of their
ability to pay. With limited resources, the state can do little to alleviate the
problem, thereby jeopardizing the physical well-being of its people. [End Page
170]
The developing country is faced with a number of competing interests that it must
balance: the needs of its people and industries, and the claims brought by foreign
governments and enterprises. Foreign governments and enterprises have an
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interest in protecting their technological advances from duplication because every
competitor producing a particular object shrinks the foreign market for the object,
reducing potential profits ceteris paribus. 58 People's needs have been
addressed previously, leaving domestic industry and foreign entity interests for
further evaluation. As argued above, inventive activity or even the process of
creating some object rarely begins without reference to or building upon other
work. Indigenous industrial research and technology that might help solve some
of the more critical problems faced by developing nations is limited, so the least
costly option is to import existing technology and to adapt it for domestic use.
While this seems to be an easy solution to the problem, the consequences of
such an action are serious as this constitutes "theft." If one does not recognize
intellectual objects as a form of property, then it is meaningless to discuss
property rights in this regard. In such cases, the state is under no obligation to
protect intellectual objects, and those with access to the product may freely copy it
without fear of penalty. Those who create intellectual objects are then left without
recourse against those who profit from their work. At the other extreme is the
argument that all intellectual works are property that is in need of protection from
"thieves." Neither of these interpretations is satisfying.
If no IP is to be protected, individuals often will be reluctant to release their works.
More importantly, this position taps into a deeper sense of fairness. If somebody
toils for months on an invention and then finds it mass-produced by somebody
else without compensation, that person will feel cheated. Similarly, laws that
protect all intellectual objects may produce situations such as that given in the
music and medicine examples. What both extremes have in common is that they
evoke a certain level of moral indignation. Society is faced with two competing
values: protecting those who create objects from being exploited by profiteers
seeking a quick dollar on the one hand, and alleviating personal suffering of
people when the capability to do so exists on the other hand. The problem is one
of property rights versus subsistence rights. The approach using the physical
well-being criteria provides one possible solution. In practice, nations already
recognize the existence of subsistence rights through a variety of means. For
example, the Universal Declaration of Human Rights recognizes such [End Page
171] rights, while domestic social legislation in the developed countries has
incorporated these basic tenets of survival. 59
Nations may choose to adopt certain objects that are considered important to their
development, but it may not be possible to justify the adoption of all intellectual
objects, which leads back to the hierarchy of IP discussed above. The decision to
import a particular intellectual object should be made with two goals in mind: (1)
to provide for the physical well-being of the state's people, and (2) to integrate the
technology into an indigenous research and development program that will
contribute to solutions for some of the problems that the state faces in providing
goods for the physical well-being of its people. The first of these principals, based
on the hierarchy of IP, is fairly obvious in its objective. The second is intended to
provide developing countries with the opportunity to break their dependency on
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the developed world for technology. The second provision, though important, is
an ancillary goal with the immediate objective being greater access to products
that will enhance people's physical well-being. Even if the developing countries
adhered to these provisions for importing technology, why should any developed
country and its intellectual property creators acquiesce to such a scheme for the
partial redistribution of technical knowledge? One could simply argue this
position on the basis of benevolence--it helps people. But this approach neglects
a glaring problem: how to balance the rights of the property creators (firms,
inventors, etc.) in the developed countries with the needs of the people in
developing countries.
C. The Duty to Bring Aid
While inventors and creators have a right not to give up their knowledge, that right
may be outweighed by a duty to assist those in the developing countries. Nozick
argues that rights to material things are determined by whether having the object
violates the rights of another individual. 60 Based on this argument, one might
insist that the property owners in the developed countries have absolutely no
obligation to provide their products to the developing countries without
compensation. After all, if we consider intellectual objects to be property (as the
developed countries do), they are the owners' to use as they please. Moreover,
property owners in the developed countries did not create the terrible economic
and social conditions that are pandemic in the developing countries; hence, IP
owners [End Page 172] have no obligation to involve themselves in solving
"their" problems. 61 If developing countries want to use intellectual property
created by other countries, they must pay to do so. This position, however, is
unconvincing.
Philosopher John Arthur insists that in situations where people have a right not to
act, there may be compelling reasons that obligate them not to exercise that right:
"If it is in our power to prevent death of an innocent without sacrificing anything of
substantial significance, then we ought morally to do it." 62 In such cases, the duty
to help others outweighs the rights of the giver if what is being provided is of
substantial significance. The problem, of course, is in how "substantial
significance" is defined. Arthur asserts two criteria for determining substantial
significance. First is the question of importance to the recipient:
[W]e might specify the needs that people have, and grant that the duty
to bring aid is not present unless these needs have already been met.
Included among the needs which are of substantial significance would
be those things without which a person cannot continue to function
physically, for example, food, clothing, health care, housing, and
sufficient training to provide these for oneself. 63
The recipient must be in need of these particular goods. Most of the points
covered in this criterion relate directly to physical well-being.
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The second criterion is a psychological factor on the part of the donor: "if the lack
of x would not affect the long-term happiness of a person, then x is of no
substantial significance." 64 Goods or products needed to sustain happiness
need not be given or sold to benefit others if the lack of the item will decrease the
amount of happiness the owner could have. In other words, items that could be
transferred are those considered to be of substantial significance to the people in
need and of no substantial significance to the donor.
The second criterion Arthur proposes is critical because it is an attempt to balance
the rights of the donor against the rights of the recipient. When [End Page 173]
applied to IPR, this principle becomes morally contentious. If one assumes that IP
rights provide an incentive to invent (however dubious this might be), then one
must focus on the incentive as the source of happiness to the creators. Of course,
there are those who invent and create things for truly altruistic reasons, but
inventions and products that require high costs often have the incentive of profit
returns to entice investors who ultimately own the rights to the product. According
to Arthur's second criterion, if profit is what makes people happy, and by allowing
their product to be duplicated they receive less profit, the producers of the IP need
not allow others to copy their product because it will decrease their happiness. In
cases where there is no substitution for the product, the producer has a
monopoly.
The situation that Arthur's second principle creates is one of profit versus physical
well-being. It is morally difficult to justify boosting profits at the expense of
peoples' physical well-being. While this issue is a problem, it need not beckon the
extreme Marxist position that advocates the abolition of private property. Instead,
what is needed is an amendment to Arthur's second criterion with what one might
call the principle of priority.
The principle of priority would recognize the property owner's right, but order this
against others' rights. This assumes, as argued above, that duties can outweigh
certain rights. A state must arbitrate between competing rights. In some cases, the
optimal solution is a simple compromise, but in others, some rights must take
priority. The question is: how would the state decide this issue? The issue is
whether a person's right to pursue profits takes priority over another individual's
physical well-being. (At this juncture, it is important to note that one need not be
concerned, as the utilitarians are, with whether society will maximize its benefits
by this decision.) Put in these terms, it is clear how the state should decide.
Clearly, the state would not be able to place the right to profits over a person's
physical well-being. Profits could be achieved by other means; the producers can
easily find other ways of generating profit. In contrast, physical well-being is
relatively limited in how it can be fulfilled. In this framework, the duplication of IP
by developing countries could be considered just, given the assumption that the
state would place human physical well-being morally above the right to profit.
In practical terms, the industrialized countries have an interest in seeking to
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improve the living conditions of the developing countries. If a goal of the
developed countries is to expand their potential markets for intellectual goods,
then they need viable, stable markets with healthy, educated people to purchase
their technologically advanced products. It is thus in the interests of foreign
entities, private and public, to assist those countries in developing sustainable
economies. On the other hand, some industries see this as a potential threat
because vibrant economies necessarily mean additional competition in an
increasingly competitive global [End Page 174] economy. In this view, additional
competition for shrinking markets may not be welcomed, as some industries see
strict IP protection as an advantage in competitive climates. 65 However, this does
not dilute the importance of the arguments already made concerning the duties to
aid other developing countries. In fact, what is called into question is the position
that IP is a guaranteed universal human right, the topic of the next section.
IV. Intellectual Property and Human Rights Reconsidered
The Universal Declaration of Human Rights recognizes IP as a universal human
right. 66 However, the argument presented so far conflicts with the UN position.
This article has argued that all IP is not equally significant to human well-being
and that people's physical well-being must take priority in assigning IP rights. This
section will contend that the UN declaration is flawed and that other issues that
relate to physical well-being must take priority over the guarantee of IP as a
universal human right.
A. The United Nations and Intellectual Property
Under Article 27 of the Universal Declaration of Human Rights, IP is designated
as a universal human right: "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." 67 The basis for such a claim without doubt lies in the
Western conception of property rights. What this implies is that, similar to the
ownership of property, people also have an exclusive right to their ideas,
creations, and inventions. In practice, the United Nations is charged with the
administration of various international agreements pertaining to IP. 68 However,
its position on IP and its duty to carry out agreements promoting universal IP
protection are incompatible with other important goals, particularly the promotion
of human physical well-being.
The declaration of IP as a universal human right is problematic within the
framework of physical well-being established in this article because the [End
Page 175] UN position does not recognize the hierarchy of IP that exists. Under
the Universal Declaration, the registered trademark for a multinational corporation
is accorded the same importance and protection as a patent for medicinal
purposes. This position has been challenged emphatically by the developing
nations with the issue again centered around the profits versus physical
well-being argument. Prime Minister Indira Gandhi of India echoed these
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concerns when she argued the following:
Affluent societies are spending vast sums of money understandably on
the search for new products and processes to alleviate suffering and to
prolong life. In the process, drug manufacture has become a powerful
industry, subject to the same driving considerations of other big
industries, that is, concentration on profit, fierce competition and
recourse to hard-sell advertising. Medicines, which may be of the
utmost value to poorer countries, can be bought by us only at
exorbitant prices, since we are unable to have adequate independent
bases of research and production. This apart, sometimes dangerous
new drugs are tried out on populations of weaker countries although
their use is prohibited within the countries of manufacture. It also
happens publicity makes us victims of habits and practices which are
economically wasteful or wholly contrary to good health. . . . My idea of
a better ordered world is one in which medical discoveries would be
free of patents and there would be no profiteering from life or death. 69
Article 27 may also pose problems for other rights guaranteed by the Declaration.
For instance, Article 25 proclaims the universal right of every person
to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical
care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control. 70
The conflict with Article 25 occurs when IP protection raises barriers to commodity
access that would improve the physical well-being of people. By promoting IP as
a guaranteed right, the Declaration gives IP producers significant latitude in
abrogating any responsibility to promote national development, though producers
often argue for greater access to foreign markets and the protection of IP in those
markets. [End Page 176]
B. Trade, Aid, and Intellectual Property
In recent years, the West, led by the United States, has pushed for increased
global protection of IP, which is in line with the UN position. 71 Based on the
previous discussion of IP protection and its relationship to physical well-being,
this position could be detrimental to the developing nations. By promoting
stronger protection of all IP, the developing nations will be placed at a more
severe disadvantage, both in developing policies to sustain economic growth and
in the increasingly competitive global markets. The result of strengthening IPR
protection for developing countries may be in foregoing products that could aid in
sustaining economic development, as it has been defined in this article. But more
importantly for the developed countries, strong IPR protection in many of these
countries will only promote continued reliance on foreign aid from the developed
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countries, which does little to promote economic self-sufficiency.
Intellectual property can be adapted to domestic economic conditions and utilized
by the developing countries. Historically, this has been the case in a number of
countries. The United States, Britain, Japan, Germany, and other developed
nations have all adopted foreign inventions, creations, and ideas and adapted
them to domestic use, promoting their continued growth and development. 72
However, the developing countries are now faced with the problem of these same
countries imposing greater barriers to accessing technology that could help
sustain development. Strong IPR protection advocated by the developed
countries is also short-sighted in that the primary concern for the developing
countries is to adapt technology that will help maintain the physical well-being of
their people. By putting up barriers, the developed countries delay the creation of
markets that could support entry of technologically advanced IP, thus cutting short
the potential profits that could be obtained if the developing countries could
sustain themselves. [End Page 177]
V. Conclusion
The above discussion illustrates how IP is playing an increasingly more important
role in the economic development of nations. While the process of further
technological advancement necessitates the protection of exclusive production
rights that IPR grant, the maintenance and improvement of human physical
well-being must be considered when allocating IP rights. The resulting decision
has profound human rights implications, given that the Universal Declaration of
Human Rights guarantees IP as a human right. In order to maximize both the
benefits derived from IP and the physical well-being of its citizens, developing
and developed countries must work to craft policies that strike a fine balance
between these values. Part of this work must include allowing developing
countries access to critical technologies that support the economic development
of their people. The trade-off for developed countries is that weaker IP protection
in developing countries may ultimately result in lower foreign aid requirements as
the developing world acquires technologies that allow it to sustain itself.
Robert L. Ostergard, Jr. is a Post-Doctoral Research Fellow at the Institute of
Global Cultural Studies located at the State University of New York, Binghamton.
His recent dissertation focuses on the evolution of the US global policy on
intellectual property rights and its implications for the developing world.
Notes
* The author would like to thank the Institute of Global Cultural Studies, the
Department of Political Science at the State University of New York, Binghamton,
and the National Science Foundation for its financial support (SBR-9617474).
Above all, the author would like to thank Prof. John Arthur of the Philosophy
Department at the State University of New York, Binghamton, whose dedication
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and support made this work possible. Additionally, the author would like to thank
Prof. David Cingranelli, Prof. Michael McDonald, Distinguished Professor Richard
I. Hofferbert, Joseph Willey, Dean Kehoe, members of the Yale II and Yale III
seminars of the Department of Political Science at the State University of New
York, Binghamton, and Prof. Juliann Allison of the Department of Political
Science, University of California, Riverside, all of whom have commented on
earlier versions of this paper. All errors are the author's alone.
1. The items protected by intellectual property rights (IPR) (usually by the granting
of a copyright, patent, trademark, or by keeping a trade secret) are numerous. For
simplicity, this article will use Hettinger's term "intellectual objects" to refer to
matter that can be protected by IP rights. See Edwin C. Hettinger, Justifying
Intellectual Property, 18 Phil. & Pub. Aff. 31, 34 (1989).
2. On the relationship between IPR and utilitarian theory, see Tom G. Palmer,
Intellectual Property Rights: Moral Philosophy and Ideal Objects 46-48 (1993)
(unpublished M.A. thesis, The Catholic University of America) (on file with author
and available through Catholic University Library). See also Justin Hughes, The
Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988). On the relationship
between traditional property rights and utilitarian theory, see Stephen R. Munzer,
A Theory of Property (1992).
3. See William P. Alford, To Steal a Book is an Elegant Offense: Intellectual
Property Law in Chinese Civilization 13 (1995).
4. See id.
5. See Frank D. Prager, The Early Growth and Influence of Intellectual Property,
34 J. Pat. Off. Soc'y 106, 107-10 (1952).
6. Magna Carta, ¶¶ 4, 22, 26, 37, 41, reprinted in The Human Rights Reader 102
(Walter Laqueur & Barry Rubin eds., 1989).
7. U.S. Declaration of Independence, reprinted in The Human Rights Reader,
supra note 6, at 108.
8. Declaration of the Rights of Man and of Citizen, 26 Aug. 1789 (1789), reprinted
in English in George A. Berman, Henry P. de Vries & Nina M. Galston, French
Law: Constitution and Selective Legislation (1994) and in The Human Rights
Reader, supra note 6, at 118.
9. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A
(III), U.N. GAOR, 3d Sess., (Resolutions, part 1), at 71, arts. 17, 21, U.N. Doc.
A/810 (1948), reprinted in 43 Am. J. Int'l L. Supp. 127 (1949).
10. Intellectual property has no universally recognized definition, so what is
considered intellectual property may vary from one country to the next. However,
as Robert Benko notes, there are some widely accepted terms in use. Robert P.
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Benko, Protecting Intellectual Property: Issues and Controversies 1-3 (1987).
For example, intellectual property can be categorized as either industrial property,
which includes inventions, trademarks, and industrial designs, or copyrights,
which include literary, musical, artistic, photographic, and cinematographic works,
maps, and technical drawings. Most software is also covered by copyrights. The
protection afforded intellectual property in the law is found in patents, trademarks,
trade secrets, and copyrights. These forms of protection are not the only ones
covered under IPR, but they constitute the bulk of protection for intellectual
property. See id.
11. John Locke, Two Treatises on Government 288 (1821).
12. Id.
13. Id. at 290. The interpretation of Locke's labor theory and the two provisos have
been the subject of much literature in political theory. The author does not wish to
enter the debate on the interpretation of these ideas, but has simply chosen
interpretations that are common in the IPR literature.
14. Of course, one argument for granting IPR is so that prior inventors and writers
will get compensation for their work. This issue will be addressed later in the
article.
15. Robert Nozick, Anarchy, State and Utopia 174-75 (1974).
16. Id. at 175.
17. Id. at 174-82.
18. Id. at 175-76.
19. Id. at 176.
20. Id.
21. Id. at 178.
22. Id. at 181. Nozick does not address the nature of intellectual property as
private property; however it is quite clear in his work that an individual who
possesses the talents to produce an intellectual object is entitled to possession.
23. Id.
24. Id.
25. Id.
26. The reasons for not being able to obtain the substance are not only financial;
factors such as geographic location, market sustainability, and access to health
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care may also interfere with an individual's ability to obtain the product.
27. While on the surface this seems to be a moot point in that the profit motive
should entice firms to make their products available to all people, some examples
show that this is not necessarily the case. For instance, the elderly and the
critically ill often find themselves unable to afford medicines needed to sustain
their lives.
28. Will Kymlicka, Contemporary Political Philosophy: An Introduction 11
(1990).
29. Id.
30. John Rawls, A Theory of Justice 23-24 (1971).
31. See, e.g., Kymlicka, supra note 28, at 11. See also Amartya Sen,
Commodities and Capabilities (1985); Amartya Sen, Goods and People, in
World Hunger and Morality 186 (William Aiken & Hugh LaFollette eds., 2d ed.
1996).
32. Rawls, supra note 30, at 29.
33. Sen, supra note 31, at 189-90.
34. See, e.g., Hettinger, supra note 1, at 47; Palmer, supra note 2, at 46-47;
Hughes, supra note 2, at 287.
35. See Ulf Anderfeldt, International Patent Legislation and Developing
Countries 36-45 (1971).
36. See Hettinger, supra note 1, at 48.
37. See id. at 50. This is further illustrated in various studies. For example,
Mansfield has noted that the pharmaceutical and chemical industries tend to rely
on American patent protection the most. See generally Edwin Mansfield,
Intellectual Property, Technology, and Economic Growth, in Intellectual Property
Rights in Science, Technology, and Economic Performance 17 (Francis W.
Rushing & Carole Ganz Brown eds., 1990).
38. See Hettinger, supra note 1, at 50.
39. See id.
40. See Alan S. Gutterman, The North-South Debate Regarding the Protection of
Intellectual Property Rights, 28 Wake Forest L. Rev. 89 (1993); Robert M.
Sherwood, Intellectual Property and Economic Development (1990); Richard
T.Rapp & Richard P. Rozek, Benefits and Costs of Intellectual Property Protection
in Developing Countries, 24 J. World Trade 75 (1990).
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41. See Gutterman, supra note 40, at 89.
42. See Office of Technology Assessment, U.S. Cong., Intellectual Property
Rights in an Age of Electronics and Information 215 (1986).
43. See Assafa Endshaw, Intellectual Property Policy for Non-Industrial
Countries 64-67 (1996); see also J.R. Harris, Industrial Espionage in the
Eighteenth Century, 7 Indus. Archaeology Rev. 127 (Spring 1985).
44. See U.S. Dep't St., Report on China, in Country Reports on Economic
Policy and Trade Practices 1989-1997.
45. See Hettinger, supra note 1, at 34.
46. See Edith Tilton Penrose, The Economics of the International Patent
System 1-2 (1951).
47. See Hettinger, supra note 1, at 34.
48. See Palmer, supra note 2, at 46-47; Hettinger, supra note 1, at 47.
49. See Sen, supra note 31, at 187.
50. See Sen, supra note 31, at 187; see also Sen, supra note 31; Amartya Sen,
Resources, Values and Development 510-11 (1984).
51. See generally Sen, supra note 31 (for an analysis of these three individual
components).
52. Sen, supra note 31, at 192.
53. The concept of physical well-being is similar to the "right to subsistence" and
"right to survival" in that all are concerned with providing those minimal products
that allow humans to live. However, physical well-being goes further by
addressing specific social contexts of these items. See Henry Shue, Basic
Rights: Subsistence, Affluence, and US Foreign Policy (1980); Arthur K. Okun,
Rights and Dollars, in Property, Profits and Economic Justice 221 (Virginia
Held ed., 1980).
54. See Sen, supra note 31.
55. This scenario is not at all fantasy. Consider the case of Dr. Samuel Pallin, who
applied for a patent and subsequently demanded royalties (although marginal)
for an opthamalogical surgical procedure. See Sabra Chartrand, Why Is This
Surgeon Suing?: Doctors Split over Patenting of Their Techniques, N.Y. Times, 8
June 1995, at D1.
56. Among these drugs is AZT (Zidovudine, formerly known as AZT or
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Aziodothymidine). See Evan Ackiron, Patents for Critical Pharmaceuticals: The
AZT Case, 17 Am. J.L. & Med. 145 (1991).
57. See id. at 146.
58. Implicitly, foreign governments and businesses also have an interest in being
able to sell goods in foreign markets in order to increase product demand and
ultimately profits.
59. See Okun, supra note 53, at 227.
60. Nozick, supra note 15, at 178.
61. The author ignores, of course, the neo-Marxist arguments that directly attack
developed countries and multinational corporations for their role in creating the
impoverished conditions in much of the developing world. See, e.g., Johan
Galtung, A Structural Theory of Imperialism, 8 J. Peace Res. 81 (1971);
Theotonio Dos Santos, The Structure of Dependence, Am. Econ. Rev., May
1970, at 231-36; Andre Gunder Frank, The Development of Underdevelopment,
Monthly Rev., Sept. 1966, at 17-31. See also Robert Packenham, The
Dependency Movement: Scholarship and Politics in Development Studies
(1992) (providing an outstanding critique of the Dependency school of thought).
62. See John Arthur, Rights and the Duty to Bring Aid, in World Hunger and
Morality, supra note 31, at 39.
63. Id. at 49.
64. Id.
65. Of course, this assumes the distinction made between necessary products for
physical well-being and products that are not necessary for this purpose, which
relates directly to the hierarchy of IP that has been discussed previously.
66. Universal Declaration of Human Rights, supra note 9, art. 27.
67. Id.
68. The World Intellectual Property Organization (WIPO), which is under the
auspices of the United Nations, administers most major IP conventions.
69. Address by Prime Minister Indira Ghandi, 34th World Health Assembly,
quoted in S. Patel, Editor's Introduction, Pharmaceuticals and Health in the Third
World 165, 165-66 (S. Patel ed., 1983).
70. Universal Declaration of Human Rights, supra note 9, art. 25. This is
controversial in that not all people or nations agree with the extent of the claims
made in Article 25. However, the purpose here is not to debate the merits of
Article 25 as a human right, but merely to point out its problems relative to the IP
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position in this article.
71. The push by the West culminated in the addition of IPR protection to the
agenda of the Uruguay Round of the General Agreement on Tariffs and Trade
(GATT). See Gutterman, supra note 40, at 89; Aggressive Unilateralism:
America's 301 Trade Policy and the World Trading System (Jagdish Bhagwatti
& H.T. Patrick eds., 1990); B.M. Berliner, Making Intellectual Property Pirates Walk
the Plank: Using "Special 301" to Protect United States' Rights, 12 Loy. L.A. Int'l &
Comp. L.J. 725 (1990); Frederick M. Abbott, Protecting First World Assets in the
Third World: Intellectual Property Negotiations in the GATT Multilateral
Framework, 22 Vand. J. Transnat'l L. 689 (1989); Chakravarthi Raghavan,
Recolonialization: GATT, the Uruguay Round & the Third World (1990).
72. See Hedrick Smith, Rethinking America (1995); B. Harrison & B.
Bluestone, The Great U-Turn: Corporate Restructuring and the Polarizing of
America (1988).
