Friday, October 06, 2006

Works in Progress: Peter Yu and David Welkowitz on Human Rights and IP

Peter Yu, Reconceptualizing Intellectual Property Rights in the Human Rights Framework: Conflict or coexistence between human rights and IP? If there’s conflict, should human rights take precedence? Or are there enough safeguards in IP that there is no conflict? See, e.g., U.S. cases finding that copyright accommodates the First Amendment with built-in limits. Is IP a human right? This is connected to whether IP can be easily analogized to real property.

Lessons from basic human rights documents: (1) IP has always been controversial within international treaties. (2) There are multiple dynamics – the Cold War leads communist countries to reject protections for private property; hesitations about using UNESCO for copyright when there’s a plan to push for broader protections in a separate proceeding later (Berne). (3) Many of today’s issues have been explored in the 1950s, and we’re rejuvenating old, forgotten debates.

Moral interest: Protecting integrity or attribution. A lot of people who are pro-access to knowledge want to use human rights to preserve access, but a human rights regime would offer strong moral protection, working against their ultimate aims.

Material interest: Does right to property always mean right to private property? The treaties are not clear – property can exist as a right of a group. A lot of the communist countries wouldn’t agree to private property protections, so the treaties don’t specify. Other considerations: remuneration for scientists doing research, when many countries didn’t want to have to give them individual patent rights.

Treaties focus on “just remuneration for labor,” and also mention protection of the moral interest. They aren’t protecting full economic interests in IP. Property rules or liability rules would be acceptable under these treaties.

We could have a human-rights-based compulsory license, combined with just remuneration. But we assume that people have money to pay for a license. That might not be true. Freedom of the press belongs to those who own one? Also, when we emphasize compensation, we may overemphasize the material interest over the moral interest. Perhaps appropriate credit or appropriate disclaimers would be more appropriate.

Alternative: a “core minimum” approach. In human rights, there are resource constraints, and lots of countries can’t fulfill their obligations, but they may nonetheless not violate human rights treaties. The core minimum approach says that you have to devote the resources you have to your obligations. Drawbacks: if you focus on core and keep on expanding, no guarantee you can figure out where the boundaries are. We also don’t know what the priorities are: countries need a lot of different things, not just IP. Finally, core minimum means that we don’t look at the relationships between the various human rights. If you can apply core minimum to IP, why not to the right to health, education, or food? Why not use that to expand IP given that a core minimum protection for education etc. exists?

Progressive utilization approach: Need to keep expanding protection based on available resources. Yu proposes seeing it as a sustainable development regime: use IP to empower people and progressively expand rights. Three-step balancing: look within an IP provision first, then at general IP provisions, then at overall human rights obligations.

Challenges: (1) Human rights ratchet. Dangerous ideas about property will be imported into IP. You’re elevating the importance of IP to that of human rights, and that is dangerous. Yu responds: There’s always limited protection, and countries need not protect to the limit. Also, when we talk about protecting moral and material interests in IP, we are not talking about importing the whole US apparatus. Things like work for hire and rights to employee inventions are not human rights because they apply to corporations.

(2) Institutional capture. IP rights owners are more likely to have resources to manipulate the human rights community. But those corporations are already part of the discussion, using NGOs to influence process. Also, Yu thinks the human rights regime is robust and could fight against capture. And if we can get big players to think about food, access, and development, that’s a good thing. Language used in a human rights forum can spill over into IP, as after Doha when people are talking about rights to health and about access to knowledge.

(3) Cultural relativism. Are human rights just western imperialism? Yu doesn’t think so – others participated in forming treaties. Human rights aren’t fixed. Protection for indigenous groups and women has expanded. Also, the US is opposed to putting IP with human rights, as are other western countries. Is the US stupid? If not, maybe developing countries should persist in pushing for linkage.

Don Chisum: The French Revolution treated authors’ rights as basic rights, so there’s a history in the west as well.

David Welkowitz, Privatizing of Human Rights? The Application of the European Convention on Human Rights to Intellectual Property: A lot of attention given to human rights in the IP context has been about conflict – how can we limit IP by using human rights terms? Using public law to limit private law. From an outsider perspective, we may be entering a situation in which private actors with IP interests, including nontraditional IP holders, may be seeking human rights as a means to create and enforce IP rights.

Why the European Convention? It’s a good starting point because it’s fairly widely adhered to, 46 countries strong. It also has an accessible jurisprudence: judicial interpretations, cases, all the things US lawyers find familiar. Ironic, because most countries involved in the Convention are civil law countries. But case law is infiltrating into their system.

Article 8, privacy.
Article 10, freedom of expression: often invoked as counterweight to IP
Article 1 of the first protocol: Protection of property – every natural or legal person is entitled to the peaceful enjoyment of his possessions

Could argue that article 14’s antidiscrimination provisions also apply to IP, if for example trademark law discriminates against celebrities.

Von Hanover v. Germany, ECHR 2004 and Anheuser-Busch v. Portugal, 2006.

Von Hanover is the ruling family of Monaco. Princess Caroline is the object of a great deal of attention, frequently photographed in public and in private. This case involved a series of photos published primarily in Germany. Technically she sued under French law, but she sued in Germany. Germany’s Basic Law has a right to privacy. After not much success below, she reached the federal constitutional court. The German court found that she was a public figure and has to tolerate a certain amount of interference with privacy. There is a recognizable public interest in receiving information about her as a celebrity, even if she’s not a ruler and even if the public is mainly interested in entertainment. The court enjoined publication in France under France’s far more protective laws, but under German law she was entitled to have some pictures suppressed (pictures with her children, and pictures of her in a “secluded” place like a restaurant) but not pictures of her in public – even when a telephoto lens had been used to get the pictures. In the balancing the court did, it specifically said the German press was entitled to freedom to maneuver, exercise of editorial judgment.

In the ECHR, Caroline succeeded. The court balanced article 8 against 10. Court didn’t agree with the emphasis the German court placed on her status as public figure. She has no authority and is basically ceremonial, and the pictures weren’t taken as she carried out official duties. And the public has a minimal interest in entertainment value.

In awarding Caroline a victory, the ECHR said Germany has an affirmative obligation to provide her with a civil tort action to protect this right. Implications for IP: we’re used to a private enforcement regime, but this implies the state needs to back it.

Anheuser-Busch v. Portugal: Dispute over the rights to use Budweiser all over the world. The Czech company claims a protectable GI, and A-B claims trademark rights. A-B applied to register in Portugal in 1981, and the Czech company opposed. Negotiations ensued. After 8 years, A-B moves to cancel the Czech company’s GI rights, and succeeds. The TM office of Portugal is then directed to grant A-B a registration. By now it’s in the 1990s. The Czech company appeals based on a 1986 treaty between Portugal and Czechoslovakia protecting GIs; the appeal succeeds.

The ECHR didn’t uphold A-B’s claim, but the case is still of interest. The court agreed that IP rights are “possessions” under Article 1 of the first protocol. The rejection of the claim was narrow: since A-B had applied in 1981 and was immediately opposed, it was really one long application process, in which A-B had merely an expectancy that wasn’t sufficient for a possession. There was a dissent that would have allowed A-B’s claim even though the state has leeway to regulate under article 1 – a proportionality requirement. The dissent thought that invalidating the registration was disproportionate, given that the treaty came after the application was filed.

Welkowitz saw a lack of deference on the ECHR for the decisions of member states. In the IP context, lack of deference allows the court to create a common-law regime, ignoring a country’s own attempts to reach a balance.

Possibilities: A robust right of publicity? Based in dignity interests, perhaps. The alternative is to say that people have property rights in their images. Unauthorized use might be considered interference with possession, creating a private right to prevent such use. There is a contrary decision in the ECHR, in which a beer bottler used a portrait of someone’s grandfather on the beer and the court refused to recognize a right – based largely on the fact that the portrait had been given to a museum and displayed publicly. The court also said that there was no indignity, because the grandfather had been connected with the brewery. He’d been dead for 80 years, which creates further products for the claimant.

TM dilution: It’s possible to see TM dilution as a right under article 1, particularly uses that might make a mark generic – even in a movie or book.

On the other side: Rights of indigenous peoples. If traditional folklore is a property right, that might be a source of an article 1 right against letting outsiders get copyrights or patents on traditional material – individuals can have standing under the law.

Who’s likely to be advantaged? Celebrities are advantaged by being celebrities, famous for being famous rather than famous for a function. Complications for the EU: If the ECJ doesn’t agree with the ECHR, there’s no obvious mechanism for resolving the problem. Also could complicate international IP negotiations, if the rules are enforceable in court decisions and the US has to pay attention to the ECHR.

Will it end up cheapening human rights by injecting too much commercial value into the human rights discourse?

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