Theories of Human Rights in Intellectual Property Law

Types of human rights, and their application to intellectual property law

Critically evaluate this attachment relating to the prospects of global copyright harmonization:

“The latest international instrument with copyright ,the World Intellectual Property Organization Copyright Treaty,signals a substantial shift away from the personality theory. In consequence,…prospects of global copyright harmonisation are limited as a result of the way in which a trade-influenced utilitarian model of copyrights applied in the world today.”(Fitzpatrck,S.(2003) 25(5) E.I.P.R.215)

Introduction:

This discussion will first of all explore the notion of rights comparing natural private property and individual rights with utilitarian rights. It will also consider the legal application of utilitarian compared to individual rights and consider how both these approaches to rights affects intellectual property rights. This discussion will consider breach of confidence which is an extreme example of intellectual property’s traditional personality theory and consider whether utilitarian rights can effectively and sufficiently protect intellectual property rights. The conclusion will then consider whether intellectual property rights, such as copyright should be protected by individual or utilitarian rights.

Rights Theory:

Natural Rights:

To understand the fundamental principles of human rights one must look at the period surrounding the Enlightenment because this is the time when the individual became an important entity, no longer was the individual part of a class on a hierarchical structure, with rights relating to that class. The natural rights theorists aim was to show that man was born in a state of nature, and given the right to do as he/she wished, but this was sacrificed to the governance of the land, i.e. that the rational man would give up the state of freedom, for the security and safety of law, governance and sovereignty^[1].

Locke, said instead of giving up the right to do absolutely anything to the sovereign entity, the rational man would put these rights in the hands of a government that holds the good of the people as supreme. Locke did not believe that man gives up all these natural rights, but each person retained rights that were regulated by a political government, to ensure a person would not use their rights in a way that would harm the rights of others. Locke’s version of rights was one of the first models of inherent rights^[2] to life, liberty, freedom and property, where the king was there at the will of the people and benevolent in nature.

The influence of John-Jacques Rousseau is also important, although not strictly speaking a natural law theorist, in the sense of earlier theorists. The most important difference that Rousseau discussed in his works was that government and reason has not protected man but enslaved man, whereas in the state of nature these rights were upheld in a paradisiacal state. One of Rousseau’s most interesting critiques of government and law was in the Social Contract where man was originally free but in society ‘everywhere in chains’. Therefore he believed instead of giving up one’s freedom to a governing body, it needs to be reclaimed by man but this did not mean reclaiming the paradise of Rousseau’s state of nature. Instead these rights should be inherent to each man and that the government created is not only for the good of the people but should be determined by the will of the people. Rousseau^[3] believed people should be part of the regulation of the government and law; otherwise the government that is essentially corrupt will take away these rights. Popular involvement makes it impossible for these rights to be taken away by the government. There was an assumption of equality between men and basis rights to life, liberty, freedom, and protection from the corruption of absolute government (i.e. rights to freedom of speech and assembly) and the right to a fair trial and independent Court of law. Even so these are not the human rights, as understood in the Twenty-First Century; they are basic rights to escape the tyranny of government ruled by religion and a sovereign/absolute power.

Positivism/Early Utilitarianism

This is not a theory of individual rights, instead it views that the good of the community was a more important aim for the law and government ruled by the people. Theorists such as Edmund Burke^[4] believed that rights were natural, including life, liberty and freedom but this theory was in the abstract, therefore they should be given by society for the good of its people, because these rights cannot be universal otherwise there is no place for cultural diversity. Burke is one of the first theorists with the cultural relativism argument^[5]; the critics of universal human rights have further advanced this in the 20^th and 21^st centuries. Burke’s move to reject universalism was the first chip in these inherent rights^[6]; how can rights be inherent if they not available for everyone, because a culture denies them. Jeremy Bentham advanced this. His theory held that were no natural rights – the government for the good of society – a form of utilitarianism, afforded rights^[7]. Therefore Bentham’s rights were legal rights where one can do whatever one wants as long as the law does not prohibit it i.e., rights are not stemming from the individual but the states and the powers of governance (Positivism). The problem with positivism or this early form of rights from utility is that the law/governance are the basis of rights and because there is no greater principle of human rights if the government decided no longer to further human rights then there would be no logical reason to condemn the change. Also this theory deals with citizens of a state and rights and welfare of this particular class of people and there seems to be no valid reason to extend them to non-citizens and reconciling this theory to the safe-haven seekers in this discussion would be very difficult.

Core Rights – Evolution of Natural Rights:

The significant difference between natural rights theorists and new core rights theorists is the move away from the divine design and the fiction of the state of nature to the secular set of rights and the argument from reason. The reason for the secularity is to strengthen the argument that these rights are universal as they span all cultures and religions and are not subject to human societal constructions. The basis of the core rights theorists is the work of Immanuel Kant. Kant’s argument, which is more commonly known as Kant’s ethic^[8], tries to get away from the needs, desires and wants, which are the basis of the rights from the state of nature. Instead it is an a priori ethic, which transcends all needs, desires, wants, purposes and end. In other words it is not part of human construction.

How does Kant argue that this is an all-encompassing ethic outside of societal conventions, without the aid of a divine being? Kant argues that it is the individual’s ability to reason and autonomous will that is the basis of his a priori argument. Shestack^[9] describes the basis of Kant’s argument as; ‘rights then flow from the autonomy of the individual in choosing his and her ends, consistent with a similar freedom for all… In short, Kant’s imperative is that the central focus of morality is ‘personhood’, namely the capacity to take responsibility as a free and rational agent for one’s system of ends’.^[10] Shestack then continues to show how this has been extended for the 20^th Century revival of these rights:

‘A natural corollary of this Kantian thesis is that the highest purpose of human life is to will autonomously. A person must always be treated as an end and the highest purpose of the state is to promote conditions favouring the free and harmonious unfolding of individuality. Kant’s theory being transcendental, a priori and categorical (all amount to the same thing) overrides all arbitrary distinctions of race, creed, and custom and is universal in nature’.^[11]

In modern theories there are different strands of this Kantian argument; however they all base round a transcendental need for the autonomous nature of the individual to be free in society. There are arguments from necessity, i.e. the minimum rights and freedoms to ensure the autonomous being; yet again it seems to be just a new veneer of the Kantian ethic. This ethic was one of the most influential arguments for universal human rights, in response to Nazism, eugenics and ethnic cleansing, which can be illustrated in the Universal Declaration of Human Rights with words such as inherent, inalienable and equality applied to rights and the basis of these rights are the foundation of freedom, justice and peace in world modern models of rights are trying to extend to all persons, regardless of their origin.

Modern Utilitarianism – Conflict of Rights:

Modern utilitarian theorists have extended the theory of Bentham, but have put it in more modern terms. Instead of maximising the pleasures and desires of the individual the government would be maximising the general welfare of individuals therefore minimising frustration of wants and preferences^[12]. Therefore what one can see is that the governing bodies must put the general welfare first, yet minimise the individual’s needs – therefore causing a conflict of rights between what is in the name of the society and what the individual wants. The problems with this theory is it is socially constructed, there is no autonomy of being and no argument for universal rights that transcend all cultures and religions, therefore falling short of what is needed for an all-encompassing human rights theory, as the general welfare can be different for differing cultures. A modern adaptation is that of Rawls. Rawl’s in his thesis for engendering human rights states that justice^[13] is the prime basis of all government and to ensure justice human rights are the obvious means and end to ensure justice is fulfilled. Rawl’s theory is based on a few key ideas, which are the rights and duties of government/institution of society and the burdens and benefits of citizens co-operating. Rawls bases his theory that each individual has an inherent and inviolable being set in justice – this being cannot be overridden for the welfare of the society. This theory does not fall foul to the arguments against modern utilitarianism. Rawl’s does use the social contract fiction of Hobbes and Locke, however the basis of moving from ignorance (state of nature) is reason and this reason set up on principles of justice that his social contract is based upon. These principles are; 1) that each person has basic rights and liberties in accordance with freedom; and 2) there is distributive justice, where inequalities are restrained by the greatest benefit of least advantaged and each person has the condition of fair equality of opportunity. These principles cannot be derogated for the public good and liberty is the supreme principle. Rawl’s theory is very important when looking at human rights theories because it begins to tackle the universality of human rights based on justice, as well as the inequalities apparent in society.

Hohfeld – Application of Rights:

. This exploration is going to argue that this exposition of rights is essential to jurisprudence and understanding the nature of rights. Under English law Hohfeld’s analysis clearly expresses how varying degrees of rights are contained under the Human Rights Act 1998 and do not conflict with parliamentary sovereignty. As Helen Fenwick discusses:

“Under Hohfeld’s view… it becomes clear that, traditionally, most freedoms in the UK were merely liberties; one did no wrong to exercise them, but there was no positive duty on any organ of the state to facilitate them… When the Human Rights Act 1998 came fully into force… many Hohfeldian liberties became rights in Hofeldian terms since… public authorities have been laid under a positive duty to respect them”^[14].

Therefore this example shows how different systems of rights can be easily analyzed with Hohfeld’s analytical interpretation of rights. In short the aim of this essay is to argue that Hohfeld has provided an understanding of rights that allows for an easy interpretation of these rights; and therefore indicates the extent in which the government can interfere and restrict rights.

Hohfeld illustrates that rights have been so confused by conflicting theories that it is not the straight-forward analytical method that is incorrect; but the confusion caused by individuals when trying to understand and clarify rights. This is very important when considering something such as copyright law, as this is a property right which is an absolute right and if it can be encroached upon by the state it is no longer an immunity but a mere liberty, which even at the time of Locke was never the intention, i.e. one’s personal property was an immunity. This can be seen in the English intellectual property law and the law of passing off one’s goods/writing/creation as another’s is a prime example of the strict approach taking in favour of protecting an individual’s intellectual property.

Intellectual Property & Rights:

Intellectual property rights like property rights have been protected in UK, US and Canadian law as individual and not the realm of the government to encroach into them. This is different from the approach being suggested in global copyright harmonization which considers a different approach, a utilitarian approach which weighs up the interests of society against the individual where the rights of the many outweigh the rights of the few. This is against the traditional approach to intellectual property law as the following case study of passing off will illustrate. Breach of Confidence in Intellectual Property law usually refers to the protection of ideas in intellectual property prior to their public release; therefore in respect to copyright it can also refer to artistic designs of goods and jingles prior to completion, but the most important factor is that it portrays the traditional approach of UK law, which is similar to the US and Canada, i.e. individual property rights should not be invaded against by government, i.e. they can not be treated in a utilitarian manner, rather the personal and public concerns need to weighed and balanced. The most interesting area of intellectual property law and the breach of confidence is the role or the media, therefore breach of confidence v’s privacy rights will be considered because this can easily be translated to the general welfare of society, i.e. the public nature of artistic and literary works v’s protection a persons private property rights in respect to copyright items.

Copyright Law:

The International Copyright Treaty is the latest in a long line of international copyright harmonization. Copyright protection is afforded to literary and artistic works that are in substantial form, i.e. sheet music, recording or written book. The work must be original and not copied.^[15] There also has to be labor and skill performed by the author/artist and the information is not pure fact, i.e. there is expression of the author within the work. It includes plays, dances, computer programmes and compiled tables. The protection of copyright does not lie around whether the work’s originality has been breached rather the author’s economic interests. This is a big problem because it focuses too much on private property rights and the greater social context of its availability to all sectors of society, such as education. Thankfully, academics/reporters can use a work for reference within research as long as properly cited and for a legitimate reason, such as a guide to earlier sources; news reporting; criticism or review; private research and study; permitted/authorized uses; and most importantly public interest. Therefore if the International Copyright Treaty had veered further on the side of private property rights these legitimate uses may be threatened or liable to a cost that only the affluent could afford. Harmonization has become especially important with the downloading of protected movies, music and literary works which have been reproduced without authorization and definitely affecting the economics of the author. However, if International Copyright Treaty was following the utilitarian model it would possibly argue that the free movement of information, literary and artistic works would be protected and this is not the aim of this treaty. Rather its aim to protect copyright rights, but to allow for some societal protection so that copyright works do not become exclusively a part of affluent members of society. One may believe that this is not possible if one lives in the UK, Canada or the USA; however in poorer countries this is possible by restricting access to education or to literary works but attaching a high price tag and this is a case where the public good comes in play which is a legitimate reason for reproduction of a work. The notion of protecting public policy is interesting and can best seen in the role of the media in intellectual property and the breach of confidence where privacy is competing the public good.

Case Study – Breach of Confidence:

The media and breach of confidence portray the same problems that are present in the tug between the greater benefit of the society and personal property and privacy rights. The right to privacy traditionally guaranteed under English law, it like other fundamental rights and freedoms were termed as civil liberties; hence an individual is allowed to anything that one wishes as long as long as it is not restricted by law. Therefore one is allowed to enjoy a private life as long as it must be declared to the government or judiciary. However within English law the notion of a private life and private property is the cornerstone of a laissez faire liberal democratic society, therefore traditionally protected by the judiciary. In R v Broadcasting Standards Commission, ex parte BBC^[16] the traditional nature privacy was expounded:

“To my mind the privacy of a human being denotes the personal ‘space’ in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement on privacy is an affront to personality, which is damaged by the violation and by the demonstration that the personal space is not inviolate.”^[17]

The view that privacy is extremely important and it is not the right of the press to violate it unless in the public interest, such as exposing criminal nature can be seen in the words of Sir Norman Fowler:

“Newspapers are there to expose: that is their function. At their best, the media expose crooks, spies and fraudsters; although at their worst they intrude into private lives when there is no public interest served. The difficulty is obviously in drawing a line.”^[18]

The ECtHR, on the other hand, supports a specific law supporting the inherent right to privacy, but also holds that the freedom of expression and free press as inherently important and therefore should be balanced out on a case to case basis. This notion will be further discussed in Section Two. However this section will consider the law of breach of confidence to determine how far the English courts will go to protect privacy, even resulting in the diminishment of a free press. It will also briefly consider defamation law, in respect to pre-Reynolds^[19] cases, because this is another area where freedom of the press has been restricted in order to protect the individual. The public figure is a special case and will be discussed before the discussion moves on to the case law surrounding the breach of confidence and defamation cases. The court in Douglas v Hello^[20] reiterated the special relationship between the media and the celebrity; but also re-affirmed their right to privacy/private life unless the individual specifically courted the media in the given claim:

“The judge recognised that information about some people’s lives has become highly lucrative for certain sections of the media and a public figure is entitled to a private life. However, he went on to say that if public attention has been courted by a claimant, then that may lead to that claimant having less ground upon which to object to intrusion. He pointed out that freedom of expression is not invariably the media’s trump card, but the Court must always pay appropriate respect to it.”^[21]

Hence the public figure is not in the same legal standing as the average individual, therefore the following case law analysis will discuss the public figure in relation to media coverage and the their right to privacy.

Breach of confidence requires a fulfilment of three aspects; information that has a necessary quality of confidence; imparted in circumstances importing confidence; and unauthorized disclosure.^[22] This has been increased to situations where there is an implied obligation of confidence, such as a privately held that limits exclusivity wedding^[23] or praying in a church^[24]. It also includes any information imparted in hospital, when a person is in a delirious state^[25]. This set of common laws has been used to protect the celebrity from unwanted publicity, except when the media has been courted as in the case of Naomi Campbell^[26], this has also been recognised in the cases of Douglas v Hello^[27] and A v B and C^[28]; however in short the protecting of confidence has been recognized as most important, which is because it is very closely tied to private property and contract rights as opposed to a specific right to privacy. The ECtHR, on the other hand, recognize privacy as an inherent right^[29] that should be balanced evenly with other inherent rights.

The freedom of expression is a fundamental freedom that has been recognized as an inherent right by the ECtHR, but the UK has not followed this ruling instead the judiciary has upheld its traditional civil liberties approach, whereby this right is free for the individual to exercise as long as these actions have not been regulated by the law. Fenwick illustrates this by comparing English civil liberties akin to Hohfeldian rights, but not the immunities as with US Constitution or the weak rights of Dworkin, but not trumps as in the US Constitution.

The ECtHR has upheld the freedom of expression as an inherent right in the same way as the right to privacy, which should be protected and if there is a possibility of a conflict then this conflict of rights should be equally balanced in respect to the facts^[30]. The court has also stated that the press has the right to report anything that involves items of public interest^[31]; “debates over matters of legitimate public concern^[32]… The Court [ECtHR] has explicitly recognised that it is incumbent on the press to impart information and ideas on matters on public interest… but the public has the right to receive them. Were it otherwise, the Court has observed, the press would be unable to play its vital role of ‘public watchdog’^[33]… The Court has found that the exercise of the freedom of expression is particularly important for elected representatives of people^[34] and for political parties and their active members^[35].”^[36] Hence should this not be extended to celebrities, because the lives of celebrities are of the public’s interest, unless the celebrity has taken all necessary means to keep there private life outside of their public life; i.e. a lot of celebrities “private” life is a means of publicity for their “working life”, therefore there is no line of demarcation and their “private” life equates to their “working” life. In short this means if the celebrity has made their “private” life as a matter of public interest, then does this not mean they should not be afforded the same rights of privacy. This has been recognized to a certain extent in the Reynolds Case in relation to allowing the press to have a defence in matters in the public’s interest; however this is limited to defamation cases. Yet this acknowledgement of a different standard of care that the press has to take, in respect to celebrities, has occurred in breach of confidence cases^[37]; but the respecting of privacy through the breach of confidence has been taken to be supreme, which is in contradiction to the balancing of two inherent rights.

Therefore the approach can neither be the traditional personality theory or utilitarian theory, but rather it needs a theory that ties the positives of both arguments together, one such approach is the Rawlsian re-distributive justice where private property or privacy rights are inherently protected unless a right that needs to protected competes with it, i.e. there needs to be a balancing act. Education and community rights and history is one example and therefore protecting their social nature is important and possibly the new International Treaty is an example of this rather than utilitarian rights. Utilitarian rights would not work for intellectual property and copyright, but personal property rights are not always the best approach when broader social issues such as equal education for all are protected.

Conclusion – Individual Rights v Collective Rights for Intellectual Property:

Therefore intellectual property is private and this is protected in the domain of the individual, it should not be weighed up against the rights of the many. This makes sense when an individual has created a piece of music or written a book should this not be protected from others making money off their hard work? The answer is yes; however there is a problem when these works are withheld for the wealthy and they lose their educational value for the masses. It is in these cases it makes sense there is a utilitarian approach to intellectual property, especially in respect to copyrights where books that have been written are protected. The problem is where does this end?

This exploration purports that society must consider the original human rights theory and ensure that every human is treated equally in respect to our fundamental and inherent rights and freedoms. These freedoms are best interpreted by Hohfeld’s analysis of rights in to the extent the government can interfere and the role the judiciary must play in maintaining these rights. However, the picture is not complete if the science in question is only considered in relation to human rights, because this isolates one to consider that they are objective; when in fact each individual is influenced by other concerns. Therefore these influences have to be taken into account to ensure that the fundamental human rights of individual are being kept and the benefits are equally reaped; rather than the affluent. This may be the approach of the new international Copyright Treaty, i.e. not a utilitarian approach but an adaptation of the two, such as the Rawlsian approach which was discussed earlier. The strict approach to intellectual property rights forgets about the broader social context of intellectual property rights the educational benefits of ensuring artistic and literary works are shared in the broader community; rather than a method for making money.

Bibliography:

Intellectual Property:

Bainbridge, 2002, Intellectual Property 5^th Edition, Longman

NLJ Editors, 2002, NLJ Law Reports, NLJ 152(7027)

Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations need to be revised, can be found at: http://www.sims.berkeley.edu/%7Epam/papers/Samuelson_IP_dig_eco_htm.htm

WIPO can be found at www.wipo.int

Media:

Grietje Baars (2003) Privacy 2002 – A Review of UK Case-Law, PDP 3.3(12)

G. Curry (2003) Case Comment: Confidentiality’s OK, ENT LR 2003 14(6) 148-150

Terence Daintith (2004) The Constitutional Protection of Economic Rights, Icon 2.1(56)