What conversations are being had about the crucial intersection between intellectual property and human rights, and who should be seated at the table?
In the summer of 2000, I traveled with my middle school to Washington D.C. We visited national monuments, saw the Lincoln Memorial, and climbed the Washington Monument. We walked past the White House, and imagined the life of the first family, the Clintons, navigating the last year of an 8-year term.
Among these incredible moments, there was one that stayed with me for years.
I and my 30, tween classmates shuttled silently through the halls of a museum. Each of us had our passport and a story in hand- we were tracing the stories of people we did not know.
One by one we learned when they were captured. For some of us, we learned the route they took from their home countries to nearby camps. We listened to different voices recount having their heads shaved and their belongings ripped from them. Mothers, fathers, daughters, sons, brothers, and sisters were separated, unsure that they would ever see one another again.
At each stage in the journey, whether on the train looking out at unfamiliar landscapes, or facing the gates to hell, we silently prayed our person’s story would end well.
Suddenly we reached a room, empty but for a massive mountain of grey items. Our class moved closer towards it, trying to make sense of what we were seeing with every step. Little by little, my young brain would make out a heel, the string of a shoelace, the rubber of a sole. Finally, I saw it.
The mountain was made of shoes. Every possible size, shape, and style.
Tears fell down my face and would not stop. I was inconsolable. At that moment, the reality of the Second World War washed over me. Each shoe represented a life lost, a dream unfulfilled, a spirit gone. All because of so much hate. I was devastated.
To this day, the thought of those shoes sends a chill down my spine.
A Global Declaration on Humanity
War has been an unfortunate reality of the world we live in–a byproduct of individuals seeking power, desperate to hold on to it, intent on reshaping the world by force. By the end of WWII, there was a global exhaustion. The scars of war could be seen in cities reduced to rubble, broken families, and international unease. So much of our humanity had been tested, and many of us found it wanting.
It was in the backdrop of that sorrow that in 1945 in San Francisco, California, United States, 50 nation-states came together to sign the charter that would bring about the United Nations (UN). The UN was born with the noble goal to rid humanity of war and fight for human rights around the globe. The charter then came into effect on October 21, 1945, when it was ratified by China, France, the Soviet Union, the United Kingdom, the United States, and a majority of the remaining 45 founding nation-states.
Three years later, the International Bill of Rights, more commonly known as the United Nations Declaration of Human Rights, was approved. The effort was fiercely championed by former first lady, tireless domestic and international activist, Mrs. Anne Eleanor Roosevelt. A woman who had been vilified in her time for supporting civil rights initiatives and her staunch support of the New Deal, Labor Unions, and gender equality, Mrs. Roosevelt represented the United States on the Committee that drafted the UN Declaration of Human Rights.
Alongside Mrs. Roosevelt was Dr. Charles Malik from Lebanon, Alexandre Bogomolov from the USSR (Russia), Dr. Peng-Chun Chang from China, René Cassin from France, Charles Dukes from the United Kingdom, William Hodgson from Australia, Hernan Santa Cruz from Chile, and John P. Humphrey from Canada. These were the men-and sole woman-responsible for drafting the most influential document in international human rights law. Beginning in 1947, the committee would meet at intervals to discuss, and reduce to words, what they believed to be fundamental human rights, conveyed at birth, and applicable to all human beings from all walks of life.
On December 10, 1948, the governing body of the UN, the General Assembly, adopted the Declaration of Human Rights. Housed in 30 articles, it contained inalienable rights for all humans. Beginning with acknowledgment of our inherent freedom at birth, to our right to self-expression, right to belong to a nation, right to education, right to be free from slavery, through to the right to marry and build a family. The Declaration of Human Rights acknowledges autonomy for the human person in every aspect of life.
As a beacon of hope and a reminder of all the decency and goodness of humanity, the Declaration of Human Rights was a document pointing the world to an ideal that all nations should strive towards. That ideal also acknowledged something else, it acknowledged the inherent value of human innovation as well as the right of society and the individual to benefit from that same spirit of innovation.
Article 27 of the document states:
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
By setting forward this value, the Declaration of Human Rights identifies a fundamental good but also exposes a tension that would emerge more and more over time. There exists a push and pull between the collective community’s right to enjoy the benefit of innovation and creation AND an individual’s right to the moral and material results of their labor.
When Personhood and Creation Collide
As I mentioned here, Intellectual Property (IP) at its core has been framed as an economic and individual right largely controlled by domestic law. International law, as designated by the World Intellectual Property Organization (WIPO) and the various treaties it administers, is often a floor for protection, not a ceiling. However, the introduction of innovation as both a social good for the community as well as a moral and material good for the individual in International Human Rights law means that we have a bit of a conundrum brewing.
Where is the problem you ask?
Walk with me…
For most people in the developing world, medication is an example that comes readily to mind. It stands as a key reason to challenge the absence of human rights considerations in Intellectual Property law. Even now, as the world faces a pandemic, a major concern has been that when the developed nations discover a vaccine, it might be years before a generic version is available and affordable for most developing nations to vaccinate their populations.
The fundamental benefit of a patent is that it provides the patent holder, typically a large pharmaceutical company, the ability to exclude all others from using that formula, or technological innovation, until they have been able to recoup the cost of developing that medication. This also excludes the ability of other companies from developing less costly, generic versions of the same medication. Some would argue that this is why those suffering from HIV/AIDS in some parts of the world were unable to access certain medical therapies, while other countries had access to a wide variety of medications to manage transmission.
On the one hand, the Declaration of Human Right states in Article 25 that:
(1) Everyone has the right 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.
And again we see in Article 27 that:
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
So if we agree that all people should have access to medical care to provide a basic standard of living and that all people should be able to enjoy and share in scientific advancements and its benefits, how do we balance the economic incentives of patents and the desire of pharmaceutical companies to make money with these fundamental human rights?
I think it is easier to grasp this conversation when balancing between pharmaceuticals’ innovation and access to medication. However, in the digital age, we are faced with different concerns that raise what appears to be abstract concerns. With the rapid growth of the digital economy, there are more goods and services that leave no physical mark, think of an ebook or online course, or perhaps a web designer. More and more people are using the internet to make money. As a result, some would argue that leaving the internet unregulated without a clear sense of how to protect and enforce digital creators’ rights is just as wrong as not protecting a patent. Both kinds of creation involve significant investment.
Some recommendations call for stronger Intellectual Property enforcement frameworks. Other parties call for both civil and criminal penalties, as well as statutory (automatic) damages for infringement. However, a number of critics to the automatic penalty framework say that this would discourage innovation and creativity- individuals would hesitate to create for fear of possible infringement. What happens if a creative takes inspiration from others or does not properly give credit on a collaboration? No one wants to end up in hot water for their work.
Right now, creatives rightly feel overwhelmed by the lack of clear guidelines and rules on Intellectual Property. It is easy to feel like there is a significant amount of legal education required for individual creatives to survive the wild wild web. The truth is that if empowered and educated on the laws and the resulting penalties, creatives will adjust, not stop creating.
Additionally, individual creatives around the world welcome opportunities to monetize their content. The possibility of infringement without recourse is one of the primary reasons the creative class has not been able to grow a workable middle class. If creatives were able to utilize the expanse of the Internet to reach their tailored community of fans, more creatives would be able to build wealth that they could live from.
No longer would a creative or innovator require millions of fans, or star power like Beyonce, Madonna, or Michael Jackson, to own a home or raise a family. If there were dependable laws that made clear the value the global community holds for creative and innovative works, then more creatives could retain the material value of their products and services.
Furthermore, the current enforcement paradigms are incredibly cost-prohibitive. Unless you are a corporation with a legion of lawyers trained in Intellectual Property litigation, the cost of enforcement of copyrights or trademarks appears enormous. To make matters worse, most attorneys are unwilling to take cases of smaller creatives, knowing that they are unlikely to have their fees covered or recover any damages, let alone meaningful damages for their clients. Given the economic potential of the creative class coupled with the barriers to retaining that economic value, it would seem that our current system warrants some discussion.
That being said, the challenge that does raise concerns on the balance is the means of enforcement. Who should be policing the internet for intellectual property violations? Which violators should enforcement agencies prioritize? What enforcement system can governments put in place that will not sacrifice the individual privacy of its citizens for the economic good of a few?
The balance for the scientific, creative, and cultural landscapes will never be struck if we do not engage the conversation from all angles. By avoiding the need for stronger enforcement paradigms, we leave the creative communities with significantly weaker political and economic power, and their circumstances will not improve without cooperative intervention. We see that Intellectual Property and human rights issues overlap, and appear to be in conflict while trying to protect the society and the individual at the same time. Now, as the digital economy continues to expand, it is crucial that we look to our laws to address these conflicts. But which laws: domestic, global, or both?
A Debate Worth Having
Intellectual Property rights are important and will affect everyone. In the same way that the law thus far has been crafted and designed by a small group of people, Intellectual Property law will continue in that way. Whether you believe that Intellectual Property rights should be seen as a human right or that they should be dealt with as a commercial right only, that is your prerogative. However, the voices of creators, consumers, as well as the corporate and governmental players are all vital. For some equilibrium to be reached, all members of this global community must contribute their voices. If it is a discussion we need to have, then it is a discussion that requires all people to at least know it is going on. Then people can decide if they wish to engage.
It isn’t when the laws begin to erode the powers of individuals, or when it is determined that there is excessive power on the side of corporate stakeholders, that we should complain. Now is the time to ensure your voice is heard. The landscape of innovation and creativity is changing daily, and legislation is trying desperately to catch up. Many of the people writing these laws are not creators, they are not software engineers, they are not practitioners, and sometimes they are only casual consumers of the content that will be impacted.
So when we talk about the Content Biz, it isn’t just a conversation about the countries, cities, and locales that have the best tax laws. It isn’t about the places that do or do not have strict labor laws, nor is it about the countries with the best incentives for businesses developing the next great tech. This is about legislating one of the most fundamental expressions of humanity: the ability to create. When you create, do you care who owns it? Under what circumstances? Who can be associated with your work and who cannot? Who receives credit for your work, and who does not? Who gets paid for your work, and who does not? Who can manipulate, edit, comment on, redistribute, and reproduce your work? Do these things matter to you?
If they do, then the landscape of Intellectual Property Rights should matter to you as well. Certainly, as a creative, your wheelhouse of strength is in creation, in bringing something to life in a way that is uniquely your own. Perhaps you are ok with releasing it to the world and letting the world do with it as it will. Or perhaps you are possessive of your work and would hope to protect it as best you can.
These are the questions to ask yourself as earnest people around the world grapple with the complexities of Intellectual Property Rights. We no longer live in a world with thick borders. Our lines of division are porous and the Internet makes them more so each day. While we do not have a global and unified approach to handling the process and exploitation of creation, we hope to one day.
When you take things a step further, with the evolution of technology, the platforms we interact with, the content we consume, it all has secondary value to companies. The ability to better predict who you are, what you want, and how to separate you from your money, in some cases, makes far more valuable than the primary product.
Content brings you onto the platform, but data is worth trillions. As a global society, we understand these concepts very little. Intellectual property is always presented in very obscure and abstract terms. Aside from a few specialists, elite practitioners and even some government officials do not entirely understand this area of law. The scary reality is that Intellectual Property increasingly controls the way content is created, distributed, consumed, and the information collected as a result of all that interaction. Now is a pivotal time for us to re-examine the laws that control so much of our lives.
When you think about 4,000 shoes piled high in an empty white room, it is easy to understand the evil in taking so many lives. There is no question it is wrong. But when you enter a search into a search bar and encounter a nameless photo, an unattributed story, or a magnificent short film with no name, do we see the inherent injustice in that? Do we recognize how vile it is to strip a person’s story from them? Are we outraged at our role in leaving so many voiceless?
The world of tomorrow is being shaped by the laws of today. Shouldn’t everyone have a say in what that world will look like?
The Content Biz Bailout
- Université de Strasbourg conference on Intellectual Property and Human Rights Issues. The University has graciously provided videos of panel discussions and presentations on various topics that impact the intersection of these laws. Several discussions are definitely worth watching.
- Read more here about the women behind the United Nations Declaration of Human Rights.
- This report by the UN on the interaction between intellectual property, medical innovation, trade, and public health explores the scientific discussion in depth and bring into account current challenges in this space.
- Intellectual Property and public health issues can be explored here.