Is a Treaty on Business and Human Rights Logically & Politically Plausible?

In October 2015, I blogged about the proposed binding treaty on business and human rights and in that post I questioned the rationale behind the proposed treaty. Well, it appears that the proponents of the proposed treaty are not about to give up any time soon. The third session of the Intergovernmental Working Group that is discussing the treaty at the UN Human Rights Council will take place between the 23rd and 27th of October 2017.

In this post, I want to highlight an article by John Ruggie (the author of the UN Guiding Principles on Business and Human Rights) that was recently published in Regulation and Governance titled ‘Multinationals as global institution: Power, authority and relative autonomy.’ The article, among other things, questions the logical and political plausibility of a binding treaty on business and human rights. I will reproduce the abstract below:

“This article aims to inform the long-standing and unresolved debate between voluntary corporate social responsibility and initiatives to impose binding legal obligations on multinational enterprises. The two approaches share a common feature: neither can fully specify its own scope conditions, that is, how much of the people and planet agenda either can expect to deliver. The reason they share this feature is also the same: neither is based on a foundational political analysis of the multinational enterprise in the context of global governance. Such an analysis is essential for providing background to and perspective on what either approach can hope to achieve, and how. This article begins to bridge the gap by illustrating aspects of the political power, authority, and relative autonomy of the contemporary multinational enterprise. The conclusion spells out some implications for the debate itself, and for further research.”

In the article, Ruggie discusses both the voluntary and mandatory approaches to corporate responsibility. However, it is his conclusions on the plausibility of a binding treaty on business and human rights that I find particularly interesting. According to Ruggie:

“…creating an overarching legal regime, whether within human rights law as the current Ecuador and South Africa led initiative has framed it, or some other framing, seems highly implausible, not only on political but also on sheer logical grounds. It would involve harmonizing aspects of often vastly different bodies of national, sub-national and international law – for starters, investment law, trade law, corporate law and securities regulation, tax laws, consumer protection law, labor law, anti-discrimination law, other areas of human rights law, and criminal law, and impinge on underlying conceptions of property rights and private contracts. The point is not that these are unrelated, but that they embody such extensive problem diversity, institutional variations, and conflicting interests, not only across states but even within them, that any attempt to aggregate them into a general treaty, a global constitutional order of sorts, would have to be pitched at such a high level of abstraction that it would be without practical meaning.”

You can read Ruggie’s article (fortunately, it is an open access article) and then you can think about whether or not the proposed binding treaty on business and human rights is really much ado about nothing.

Emmanuel Oke

Posted in Business and Human Rights, Human Rights | Tagged , , , , | Leave a comment

India’s Intellectual Property Policy and Human Rights

Last week, the Indian government released its much awaited National Intellectual Property Rights Policy. As stated in the document, the rationale behind the policy ‘lies in the need to create awareness about the importance of  IPRs as a marketable financial asset and economic tool.’ This rationale is clearly reflected in some of the objectives contained in the policy. The objectives of the policy include, creating public awareness about the economic, social and cultural benefits of IPRs among all sections of society; stimulating the generation of IPRs; getting value for IPRs through commercialization; and strengthening the enforcement and adjudicatory mechanisms for combating IPR infringements. These objectives will hopefully go a long way in pacifying the USA and multinational pharmaceutical companies.

To be sure, one of the objectives of the policy is to have strong and effective IPR laws which balance the interests of rights owners with the larger public interest. However, the main thrust of the policy seems to be aimed at the generation, commercialization, and stronger protection of IPRs in India. I do not intend to provide a critical assessment of the entire policy here. I think Professor Shamnad Basheer has done a very good job in that regard here.

My goal here is to highlight one critical omission in the policy i.e. the failure to include a human rights perspective. It is surprising that the policy fails to discuss the relationship and tension between intellectual property rights and human rights. For a country where there are several patients struggling to have access to essential medicines, this is a significant omission. As noted in an earlier blog post, an earlier draft version of India’s IP policy prepared by a government think-tank  had noted that, “[the] right to health is an integral part of the right to life enshrined in the Constitution of India” and that “India is committed to providing its citizens access to affordable medicines, quality healthcare and innovative products and services.” The final version of the policy that was published last week by the Indian government however contains no reference to the right to health or to any other human right for that matter.

In my view, this omission further reflects the fact that the policy is aimed at the generation, commercialization, and stronger protection of IPRs in India. The policy is most likely aimed at pacifying certain actors that keep putting pressure on India with regard to its IP laws and policies. Let’s hope that this policy will pacify these particular actors.

Posted in Intellectual Property | Tagged , , , , | Leave a comment

Framing India’s Alleged Assurances on Compulsory Licences as a Human Rights Issue

India’s patent regime is in the news again. This time, there have been reports that the Indian government has ‘privately assured’ the US-India Business Council (USIBC) that ‘ it would not use Compulsory Licenses for commercial purposes.’ To be sure, the Indian government, through its Ministry of Commerce and Industry, has issued a ‘clarification‘ to the effect ‘that such reports are factually incorrect.’

In my view, this issue should not just be framed as one that involves patent rights or trade relations. This issue should equally be framed as a human right issue. Patent rights do have an impact on human rights. Pharmaceutical patent rights can affect the enjoyment of the right to health. Thus, in a situation where a patentee abuses its patent rights by selling its patented drug at a price that is not reasonably affordable, a country is within its right to intervene by issuing a compulsory licence.

India’s patent law contains a provision permitting the grant of compulsory licences where a patented product is sold at a price that is not reasonably affordable (and this provision has only been used once). Nothing in the TRIPS Agreement prevents a country from taking this step. Compulsory licences can actually be used to facilitate greater access to medicines. Compulsory licences (or the threat of issuing one) can thus play a crucial role in ensuring that pharmaceutical patent rights are not exercised in a manner that impedes the enjoyment of the right to health.

It is noteworthy that India’s National Human Rights Commission has also waded into this matter. In a press release published on the 1st of April 2016, the Commission observed that ‘the contents of the press reports, if true, raise questions impinging upon [the] right to health of citizens in India.’ The Commission therefore called for ‘reports within two weeks from the Union Ministries of Commerce & Industries as well as Health, through their Secretaries in the matter.’ In the meantime, it is hoped that the Indian government will not backtrack from its initial clarification that ‘under the Doha Declaration on the TRIPS Agreement [and] Public Health, each member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted.’

Posted in Intellectual Property | Tagged , , , , | 2 Comments

GSK’s Plan to Improve Access to Medicines in Developing Countries

In a press release published on its website today, GSK has announced a series of measures that, if implemented, could help to improve access to medicines in developing countries. According to GSK, it is ‘evolving its graduated approach to filing and enforcing patents so that IP protection reflects a country’s economic maturity.’

Essentially, under this graduated approach, GSK will not apply for patents on medicines in Least Developed Countries and Low Income Countries. For Lower Middle Income Countries, GSK will still apply for patents on drugs but it will seek to offer licences to allow supplies of generic versions of its drug for 10 years. However, GSK made it clear that it will continue to seek full patent protection in High Income Countries, Upper Middle Income Countries, and G20 countries.

According to GSK, it ‘recognises that improving access around the world requires a flexible and multi-faceted approach to intellectual property (IP) protection.’ And while it believes that ‘IP stimulates and underpins continued investment in research and development,’ GSK also ‘believes being flexible with its IP can help address pressing health challenges in developing countries.’ In my view, GSK’s plan is a right step in the right direction.

The press release can be found here.

Posted in Business and Human Rights | Tagged , , , , | Leave a comment

Nollywood’s Absurd Demand for a Constitutional Right to IP in Nigeria

It is no longer news that Nigeria is seeking to amend its copyright law. Nollywood, Nigeria’s popular film industry, however has some complaints with regard to the amendment of the Nigerian copyright law. According to an article dated 28 November 2015 and published in a Nigerian newspaper, Vanguard, Nollywood apparently has its own demands that it expects to see reflected in the reform of the Nigerian copyright law. Nollywood feels that the Nigerian Copyright Commission, the regulatory agency in charge of copyright in Nigeria, has not carried the film industry along in the reform process.

According to the newspaper report, Nollywood’s demands are contained in a paper titled, ‘Nigeria’s Film Industry Copyright Manifesto.’ I do not have access to this document but the newspaper report provides some clues as to the contents of Nollywood’s demands. Among other things, Nollywood wants ‘more robust provisions targeted at curbing online pirating of films.’ Nollywood also wants ‘a specific broadcast right’ because ‘section 6(1)(c) of the Copyright Act does not specifically mention “the broadcast of a film” as one of the rights of a copyright holder.’ Nollywood is equally requesting for the criminalization of ‘the making, selling, using or stocking [of] devices that circumvent anti-copying technology.’ I do not intend to assess the merits or otherwise of these demands in this post. It is unsurprising that the Nigerian film industry is seeking to secure stronger rights to protect the interest of film producers. However, I believe this can be done without necessarily making absurd demands.

Apart from the demands highlighted above, Nollywood is also demanding for the introduction into the Nigerian Constitution of a right to intellectual property. Nollywood wants Nigeria to follow the Kenyan model in this regard. Article 40(5) of the Kenyan Constitution provides that, “The State shall support, promote and protect the intellectual property rights of the people of Kenya.” It is noteworthy that Article 40(5) is ensconced within the context of Article 40 of the Kenyan Constitution which deals with the protection of the right to property. Importantly, Article 40 is located in chapter 4 of the Kenyan Constitution which contains the Bill of Rights. In other words, Article 40(5) appears to equate intellectual property rights with property rights. Article 40(5) also seems to suggest that intellectual property rights share the same status as other fundamental human rights contained in the Kenyan Constitution.

I really have no clue why Nollywood feels intellectual property rights should be constitutionalized in Nigeria. As it has been noted previously on this blog, intellectual property rights (including copyright and patent rights) are not human rights. Furthermore, intellectual property rights are distinct and should never be confused with real property (though they might appear to share some similarities). Perhaps, Nollywood has failed to properly consider the broader implications of this absurd demand.

Firstly, if intellectual property rights are deemed to be human rights, it can exacerbate the tension already existing between fundamental human rights (such as the right to health) and intellectual property rights (such as patent rights). By the way, if you think there is no such thing as the right to health in Nigeria, you might want to read this judgment. I don’t need to bore you with examples to show how patent rights on pharmaceutical products can affect the enjoyment of the right to health. Just ask poor patients living in India or South Africa. NGOs like MSF will equally be happy to educate anyone on how patent rights can affect access to medicines. Apart from its potential impact on the right to health, Nollywood’s demand can also exacerbate the conflict between copyright and the right to freedom of expression. Indeed, without transforming intellectual property rights into fundamental human rights, intellectual property rights (as ordinary rights) naturally conflict with a number of fundamental human rights. So why do we need to up the ante in this regard in Nigeria?

Secondly, Nollywood’s demand appears to be based on the assumption that the Nigerian government is not already supporting, protecting and promoting the intellectual property rights of Nigerians. What about the various enactments governing intellectual property rights in Nigeria such as the Copyright Act and the Patents Act? I think we need to draw a distinction between a total failure to protect and promote intellectual property rights on the one hand and the need to strengthen existing mechanisms for the protection and promotion of intellectual property rights on the other hand. I believe the latter can be done in Nigeria without following the Kenyan model of constitutionalizing intellectual property rights.

In a future post, I intend to examine some Kenyan case law to show how the Kenyan courts have interpreted Article 40(5) of the Kenyan Constitution. For now, I can say this much: in my own view, the Kenyan Supreme Court appears to have endorsed the position that Article 40(5) of the Kenyan Constitution is merely hortatory. I sincerely hope that Nigerian lawmakers  ignore and reject this absurd demand by Nollywood.

Posted in Intellectual Property | Tagged , , , , | Leave a comment

Will Section 3(d) Make India A Patent-Free Zone?

In its implementation of the TRIPS Agreement, India incorporated a clever provision into its Patents Act. This clever provision, Section 3(d), is essentially aimed at preventing the grant of secondary patents on trivial modifications of existing drugs. This provision was relied upon by the Indian Supreme Court in 2013 to deny Novartis a patent on its drug, Glivec. It should however be stressed that while Section 3(d) might be effective against secondary pharmaceutical patents, it may not really prevent the grant of pharmaceutical patents on new molecular entities.  This raises a crucial question: what impact will Section 3(d) have on the Indian pharmaceutical patenting landscape with regard to new molecular entities in the future?

This crucial question is addressed in an interesting article on drug patenting in India written by Bhaven Sampat and Kenneth Shadlen and published in August 2015 in Nature Reviews: Drug Discovery. Sampat and Shadlen make a number of important observations in their article. I will try to highlight some of their observations in this post. As Sampat and Shadlen point out, ‘while Section 3(d) has attracted considerable attention, another aspect of India’s TRIPS implementation was to disallow any patents with a priority year (that is, the year of first global filing) before 1995.’ Thus, by necessary implication, with or without Section 3(d), Sampat and Shadlen note that ‘pre‑1995 compound patents are not eligible for protection in India.’ This explains why, as Sampat and Shadlen note, ‘drugs with pre‑1995 primary patents must rely on ‘weaker’ secondary patents as their only form of protection in India, as illustrated by the Glivec case.’

What about drugs with post-1995 primary patents? According to Sampat and Shadlen, ‘For drugs with pre‑1995 compound patents that are not eligible in India, Section 3(d) and other restrictions on secondary patenting may determine whether a drug gets any patent protection at all. For drugs with post‑1995 compound patents that are likely to be patented in India, the main effects of Section 3(d) and other restrictions on secondary patents will be on the duration of protection.’ In other words, the term of patent protection for drugs with post-1995 primary patents will not be extendable through the grant of secondary patents.

It is therefore true that Section 3(d) makes it difficult to obtain pharmaceutical patents in India, but this is only true with respect to secondary patents and not primary patents. Section 3(d) does not and (as Sampat and Shadlen note) ‘will not necessarily make India a patent-free zone.’ Besides, the TRIPS Agreement does not make it mandatory for countries to grant secondary patents on pharmaceutical products. More importantly, as Sampat and Shadlen rightly point out,  ‘if Section 3(d) is implemented as intended — to limit secondary patents — then as 1995 fades further into the past, most new molecular entities will get one patent in India, but only one.’

Emmanuel Oke

Posted in Intellectual Property | Tagged , , , , | Leave a comment

Is Intellectual Property Really Property?

I think those who are examining the question of whether or not intellectual property is property may find this article by Julie E Cohen interesting. I will reproduce the abstract below and you can form your own conclusions after reading it.

Property as Institutions for Resources: Lessons from and for IP  

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property (IP) is property is instructive. IP scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of debates about the appropriate extent of IP-rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that IP is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model—that in the postindustrial era of wealth production, the cosmology of property can no longer place terra firma at the center.

This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the IP question. Property in intellectual goods resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for IP must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within IP ecologies; and the widespread use of licensing to delineate rights and obligations.

Emmanuel Oke

Posted in Intellectual Property | Tagged , , , , | Leave a comment