1.5.2 - Natural rights

Entitlement to the fruits of one’s labor and skill. The basis for the natural rights approach can be found in three principles That a person is entitled to the fruits of (i) his labor, (ii) his money or (iii) personality. In varying degrees, these three principles can be found to have provided a foundation for statutory intellectual property rights in various jurisdictions.

Labor. Traditionally, the foundation of intellectual property rights was found in the principle that a person is entitled to the fruits of his own labor. This principle also underlies the Roman law concept of specification as an original mode of acquisition of property for newly created objects (nova species).

Personality. Somewhat akin to the principle that a person is entitled to the fruits of his own labor, is the doctrine of personality rights. This approach goes a step further than the doctrine that one is entitled to the fruits of one’s labor by proclaiming that a person is entitled to any object that originates from one’s personality or intellectual efforts.

Financial efforts. If one approaches the principle that one is entitled to the fruits of one’s own labor from an economic perspective, the obvious conclusion seems to be that such a right should not be limited to the fruits of one’s physical efforts but should  be extended to encompass the fruits of any investment of labor, skill or money. The logical development of the principle that one is entitled to the fruits of one’s labor is therefore that one is entitled to the fruits of one’s financial efforts and the expenditure of capital.

Privileges. That intellectual property rights primarily aim to protect financial efforts also becomes apparent from the fact that the old privileges – the forerunners of today’s  intellectual property rights – were usually awarded to printers or publishers instead of authors. Their purpose was not so much to protect  the creative efforts of authors but to protect the investments made by the printer or publisher.

Copyright as human right. The natural rights principle has been recognized for copyrights in the Universal Declaration of Human Rights (1948) and the International Covenant on Economic, Social and Cultural Rights (1966). Article 27(2) of this Universal Declaration provides a human rights foundation to copyright by requiring that everyone has the right to the protection of any literary or artistic production of which one is the author.

Article 27(2) of the Universal Declaration: “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.”  This language is in line with that of the Berne Convention that calls for “the protection of the rights of authors in their literary and artistic works” (article 1). A similar provision can be found in article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights says: “The States Parties to the present Covenant recognize the right of everyone:: […] (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Human rights? It seems that one should not too easily take the position that IP-rights are to be considered as human rights. The consequence of that position is that if a jurisdiction would fail to recognize IP-rights, its legal system would  qualify as unjust. With all due respect for the goal and purpose of IP-rights this seems like one step too far. I therefore do not subscribe to the opinion that IP-rights are basic human rights and that a state that fails to recognize IP-rights has an unjust legal system.

International and historical perspective. Qualifying IP-rights as basic human rights for instance means that from an international  perspective all – mostly third world – countries that somehow may fail to provide for IP are considered piracy states. Historically some restraint may be appropriate, if we realize that for instance The Netherlands and Switzerland abolished patent rights at the end of the 18^th century, which period made it possible to catch-up with more industrialized countries like England and Germany. Many third world countries are in the same position as The Netherlands and Switzerland were in those years and it seems somewhat overbearing to deny them the possibility to do the same. The economic development of Japan, Korea and China in the past few decades also illustrates that a period of fervent copying can precede the subsequent development of an innovative economy.

TRIPs. The circumstance that  the TRIPs-Agreement is an Annex to the Agreement establishing the World Trade Organization illustrates that IP-rights are market organization rights  that serve to stimulate innovation and provide for a level playing field. IP-rights are a means to achieve a goal, but should not be mistaken for an end in itself.

EU Charter of Fundamental Rights. In this context one also has to note that article 17 of the Charter of Fundamental Rights of the European Union (2012, C326/391), which  provides for the protection of the right to property, expressly states in section 2:“Intellectual property shall be protected.” As a statement of principle this cannot be ignored. It can be observed, however, that the statement lacks specificity as to what rights are to be considered to be IP-rights and – more relevant – as to what that protection should entail. The practical implications of this provision therefore seem limited.

Awarding IP-rights. It seems to me that the human rights arguments are not convincing if it comes to the need to recognize IP-rights as such. However, once a jurisdiction has decided to grant IP-rights, these arguments certainly provide guidance for answering the question as to whom such rights should actually be awarded to. In the context of awarding IP-rights, human rights arguments play a convincing and decisive role by providing a basis for a fair and equitable distribution of these rights within an IP system.

John Locke. Natural rights as the right tot the fruits of one’s labor and skill or one’s personality can be traced back to the English philosopher John Locke (1632-1704). In those days the rule of law, as we know it today, was not well settled. Having achieved that is one of the results of the Enlightenment and Locke was one of its precursors. In those days it was important to protect citizens against arbitrary governmental actions, for instance, in the field of deprivation of property. It seems to me that Locke’s reflections need to be understood within that historical context.