The aim of this project is to consider the partnership between intellectual property and individual privileges. Intellectual property rights have spread out through many bilateral, regional and multilateral treaties and the importance of intellectual property is increasing with each transferring day. However, the privileges stemmed from intellectual property have started out up a tough dialogue with a individuals rights aspect because of its affects on real human rights.
The problems produced from this connection have been developed comprehensive. Within the first part, intellectual property-related human rights laws and real human rights-related intellectual property law are talked about. The TRIPS Arrangement is analyzed and the discussion of whether intellectual property rights are human protection under the law is examined in line with the international equipment when appropriate. One of the more intriguing questions is whether intellectual property rights are human rights; to answer this, we should go through the international instruments. In part 2, the European Court of Human being Right's decisions involving if the term 'possession' in Article 1 of Standard protocol No. 1 of the Convention for the Coverage of Human Privileges and Fundamental Freedoms includes intellectual property rights such as trade mark, copyright, patent. Partly 3, TRIPS arrangement and its influences on the realization of real human rights including the pressure between patents and to health related to HIV and Supports which mostly influences underdeveloped and growing countries are analyzed.
I wish to clarify beforehand that related subjects concerning the relationship between intellectual property and individuals protection under the law is not analysed since you'll find so many branches stemmed from that relationship. Therefore, it is required to choose the most important and relevant elements of that relationship. For example, some international equipment that are related to both intellectual property and individual rights are not examined. Moreover, Vacations Agreement does not only have negative effects on right to health but also on other individual rights however only right to life is analysed because of the same reason.
The romantic relationship between human privileges and intellectual property that have been formerly strangers, are actually becoming intimate bedfellows. This circumstance is stated as
For decades both subjects developed in electronic isolation from each other. But in the last few years, international standard setting up activities have started to map recently uncharted intersections between intellectual property law on the one hand and individuals rights regulation on the other.
The interplay of human being rights and intellectual property privileges has already reached new heights because the World Trade Organization (WTO) Arrangement on Trade-Related Areas of Intellectual Property Privileges (TRIPS Contract) which was enacted in 1995 and hereafter areas, courts scholar, intergovernmental and nongovernmental organizations (NGOs) like the World Intellectual Property Company (WIPO), the planet Trade Company WTO), the U. N Fee on Human Protection under the law and the Sub-Commission on the Campaign and Protection of Human Protection under the law, THE EARTH Health Corporation (WHO) and the Discussion of the Get-togethers to the Convention on Biological Variety (CBD) has drawn more attention to this hyperlink.
Moreover, before Vacations Agreement was joined into effect, there had already been some impacts to produce this intimate bedfellow. The first one is the adaptation of non-binding file called UDHR in 1948 by Basic Assembly of the US. After the Second World Battle, the challenge of disregard and contempt for human being rights broke out and the declaration arose from these affects of the Second World Conflict which symbolizes the first global expression of right. Inside the UDHR, the significantly important article in conditions of intellectual property is Article 27(2) which is analysed below.
In the middle-1960s, to be able to make the UDHR binding, two covenants that are ICCPR and ICESCR were adopted. Under article 17 of the ICCPR and under article 15(1)(c) of ICESCR the hyperlink between intellectual property and individual rights is once more stated plus more attention is drawn to that relationship and the debates brought on by this marriage.
As an outcome, the relationship between intellectual property protection under the law and human rights which is quite complicated and questionable has been at the centre of the heated up debates for both IP and HR specialists for over half a century. The effect of IP guidelines on the ability of Says to comply with their commitments under international individuals rights including the duty to guarantee everybody usage of affordable medicines reaches the main of the issue. Even though it is often known a perfect balance is most likely unattainable, some international intellectual property rights like the TRIPS Contract recognise that maximum balance has to be created between intellectual property privileges and human privileges. On the other hand, it is also argued that whether intellectual property rights are human protection under the law.
INTELLECTUAL PROPERTY-RELATED Individuals RIGHTS LAW
The International Covenant on Civil and Politics Rights(ICCPR) and its own two Optional Protocols, the General Declaration of Human Rights and the International Covenant on Economic, Friendly and Ethnical Rights(ICESCR) that have been adopted in 1966, 1948 and 1966 respectively, form the International Invoice of Human Rights. These instruments have always been used to argue that human protection under the law covenants identify intellectual property protection under the law as human protection under the law.
As it is mentioned above Article 15(1)(c) of the ICESCR relates to the intellectual property and it recognises the right of everyone to reap the benefits of both moral and material interests resulting from any literary, technological or artistic production of which he is the author. Furthermore, Article 15 (1) does not only talks about the coverage of the material benefits of the author but also identifies the right of individuals to be a part of cultural life, enjoy the benefits of clinical progress and its own applications meaning article 15 impliedly mentions the necessity of balance between the rights of the author, who makes a specific contribution, with the average person and collective protection under the law of population to benefit from this contribution. Corresponding to a lot of people this reading of the law is the proof that the intellectual property rights are human protection under the law. 12
Similarly, as it is mentioned above Article 27(2) of UDHR relates to the intellectual property and intellectual property rights are enshrine as human being privileges in the UDHR under that article which suggests that everyone has the right to safety of moral and material interests caused by any methodical, literary or creative work of which he is the author. However, Article 27 of UDHR and Article 15 of ICESCR lead to some questions such as all intellectual property protection under the law are human rights. (rather than saying lead to some questions and giving only 1 example, say emphases that question whether intellectual property rights human protection under the law? )
According to the intellectual property right advocates these articles show that all intellectual property rights such as patents, trademarks, place breeders rights are human rights. To be able to give a acceptable response to this question, these procedures have to be examined tightly in terms of the meaning of the word 'publisher'.
According to the majority of specialists in both areas, the word 'creator' does not contain only the term 'writer' but also the breeder and inventor. In my own point of view, these provisions refer to the word author and it covers the copyright coverage due to the use of term 'author' in copyright. (so from your viewpoint what is author containing and just why? Only saying due to it addresses coverage of copyright is not enough. Make more comment) However, the word 'writers' must be interpreted narrowly in line with the VCLT rules. Therefore, for occasion, the security of moral and materials benefits of authors cannot include the meaning of protection of the benefits of a patent. In other words, when we take into consideration of Article 27(2) of UDHR and article 15(1)(c) of ICESCR it is concluded from the interpretation of the two articles that all intellectual property privileges are not accepted as human being privileges under these provisions. why? ( mesela 15 in a b c fikralarindan bahset bu fikralarin getirdiklerine ve neyden bahsediyolar, hr baglanti var mi yok mu, authordan bahsetmissin ama asil fikranin author icin etkisinden bahsetmemissin, yani writer bu fikradan nasil etkilenecek ?)
At that time, General Comment No 17 which was used by the ECSR Committee should be pointed out about the question whether Article 15(1) (c) identifies the protection of intellectual property. According to the General Comment on Article 15(1)(c) of ICESCR, it isn't possible to conclude that article 15(1)(c) shields intellectual property rights or lift up intellectual property to the individual rights stratosphere. This circumstance is mentioned in a few paragraphs of Standard Comment such as paragraph 1 stating that 'it is important never to equate intellectual property rights with the human right acknowledged in article 15, paragrap1 (c)' by showing the reasons explained in paragraph 1 and 2 where it generally strains the difference between human being privileges and intellectual property privileges and paragraph 7 noting that '. . . intellectual property rights' entitlements, for their different nature, aren't protected at the amount of human privileges. '
Furthermore, the committee limits the range of the author term by saying that no legal entity can be regarded to be an writer through implementing the words 'everyone', 'he' and 'she' by indicating the drafters belief that creators of medical, literary or imaginative productions can only be natural people. This interpretation implies that intellectual property privileges are neither recognized as human protection under the law nor brought up under that article. For, intellectual property right holders generally are legal entities such as the large companies positioning patents that can have a potential to have an impact on the treatments attainability and exempting these businesses is against its nature. On the other hand, in the light of basic comment no 17, it can be construed that not absolutely all intellectual property protection under the law but only the natural owners' intellectual property protection under the law are recognized as human protection under the law.
Besides, article 12 of UDHR, which gives safety against arbitrary interference with level of privacy, family, home or correspondence and against attacks after honour and reputation, is also accepted within the wider intellectual property framework, such as an action for violation of assurance, trade secrets, moral privileges and even personality rights. ( bu paragraph hem kisa biraz uzun olmasi lazim hemde biraz bu konu hakkinda sende yorum yap)
Moreover, the ICCPR will not provide a positive basis for the security of intellectual property rights, but under article 17 it guarantees, indirectly, the coverage of moral privileges that there shall not be any unlawful disorders on someone's honour and repudiation and also Article 19 mentions the flexibility of expression which contains to receive and impart information and ideas which ultimately shows that there is further indirect safeguard for reputational rights. (Independence of expression'nun insanin en temel haklarindan oldugundan vazgecilemeyeceginden bahsedip Article 19 da da deginilmesi dolayli bir koruma getiridgine kanit oldugunu soylebilirsin)
THE EUROPEAN Courtroom OF HUMAN Privileges AND INTELLECTUAL PROPERTY
Furthermore, the Western Court of People Rights has discovered intellectual property privileges as human rights when interpreting the word 'ownership' in Article 1 of Process No. 1 of the Convention for the Cover of Human Protection under the law and Fundamental Freedoms. In Anheuser-Busch Inc v Portugal circumstance which relates to the application of helped bring by Anheuser-Busch Company to register the 'Budweiser' as a trade tag which had already been registered as a designation of origins with respect to a Czechoslovak Company, the Grand Chamber of ECHR performed that IPRs 'undeniably enticed the cover of Article 1 of Standard protocol No. 1 of the ECHR and that it is clear a trade symbol falls within the scope of the term ownership under that article. Similar decision happened for copyrights by ECHR in Basan v Moldova that the safeguard under article 1 also reaches copyrights. Besides, in Smith Kline and French Laboratories Ltd v holland the ECHR suggested that patent quantities to a 'possession' within the meaning of this article. Thus, even if the range of the term ownership is not identified explicitly, there is absolutely no hesitation that the intellectual property protection under the law are secured by article 1 of standard protocol 1 of the convention. This interpretation is also pointed out by an writer that:
The concept of "possessions" in the first part of Article 1 of Protocol No. 1 has an autonomous interpretation which is not limited by the possession of physical goods and is 3rd party from the formal classification in domestic law: certain other privileges and hobbies constituting assets can even be thought to be "property rights", and thus as "possessions" for the purposes of this provision. ( idea of the possessions'i paragrafin baslarina al, caselar hakkinda cok detayli bilgi gerekmiyo bence ve sonlara dogru mahkemenin tutumunu kendi yorumunla acikca belirt)
TRIPS AGREEMENT AND REALIZATION OF People RIGHTS
After analysing the intellectual property-related human rights instruments, we should also take a look at the human protection under the law related intellectual property contract which is the Agreement on Trade Related Aspects of Intellectual Property Privileges, more commonly known as Outings negotiated in 1994 at the Uruguay Circular of GATT and the ratification of Excursions became a compulsory requirement of WTO membership. Any countries happy to type in international market segments facilitated by WTO have to adhere to totally enforced intellectual property regulation by Vacations. This makes Travels an extremely critical device for maintaining intellectual property regulations in enough time of globalization.
The TRIPS contract which has a so-called major try to enhance the standards of intellectual property rights, especially in under-developed countries, has huge influences on the realization of human being protection under the law through its implementation. For, under Excursions the safety of patents is strengthened however this strengthening has started being damaging for fundamental human privileges such as right to health. In other words, the nexus between your intellectual property rights and realization of individual protection under the law in under-developed countries occurs in regards to to a number of human protection under the law such as rights to health particularly in the context of the HIV/Helps epidemics in Africa and India. That is because of the fact that medical patents make countries to present product patents in pharmaceuticals, in that way not allowing the common medicines which causes remarkable drop in the prices of the drugs, adversely effecting the drugs accessibility and endanger the life span of a considerable number of persons, thereby the individuals privileges to health.
In my perspective, TRIPS Arrangement fulfils its own obligations partially by emphasising, impliedly under article 7, the need to balance the individual rights and intellectual property protection under the law, by not providing any method how to do this balance. Therefore, the ways of achieving that balance should be inserted by the clause into Vacations Contract since in terms of right to health, the affordability and availability of medicines, specifically by needy people, will be the two major the different parts of right to health. Because of this, TRIPS Agreement, unlike its so-called try to enhance the criteria of intellectual property privileges specifically in under-developed countries, has taken benefits and then developed countries and this has done by preventing the development of producing countries. Therefore, Vacations Contract should be amended at the earliest opportunity.
The reaction, up against the impacts of intellectual property rights on the realization of human rights such as the significant changes in the medication prices, is also used hands by the Sub-Commission on the Advertising and Security of Human Privileges which declares that any intellectual property protection under the law regime whatever would make it more challenging for a state to comply with its core obligations in relation to the to health and food would be inconsistent with the lawfully binding obligations of the concerned state.
In my viewpoint, which is also the prominent view among people concerning the question whether intellectual property rights are human privileges, intellectual property rights cannot be named human rights since they are incompatible to one another. After the WTO's TRIPS arrangement was adopted which made WTO countries to include patent security for pharmaceuticals, this dominant view among regulators has strengthened and the view of adherents started to claim that the responsibilities imposed by the Excursions agreement, particularly in the form of medical patent, come in the way of countries rewarding their international responsibilities towards satisfying their residents' to health, which really is a well recognised human right.
Moreover, it is commonly accepted by many authorities, including authors as well as the General Comment No 17 about the Article 15(1) (c) of ICESCR, that defining intellectual property guidelines as human protection under the law is problematic at the theoretical level since on the main one side human protection under the law are the protection under the law that are inalienable and part of general entitlements that aren't limited with time or space and cannot be suspended or curtailed. On the other hand, Intellectual property rights are limited-duration statutory privileges which are granted by the state of hawaii. Furthermore, it is not really logical to recognise intellectual property privileges as human privileges whereas human protection under the law such as to health are named privileges that are natural to mankind by virtue of their mankind. Besides, they could be curtailed in certain circumstances where they discord with the bigger interests of world.
The reason of concentrating on the underdeveloped and growing countries is the fact that HIV and Helps affect people moving into poorer countries to the exponentially greater amount than people in wealthy countries. ( bence, child cumleyi bu konuyu anlattigin yere eklersen daha iyi olacak gibi cunku genel bilgi verirken ozel bir aciklama yapmissin)