Community Rights to Intellectual Property in Asia—From Rhetoric to Consensus

• Date: 01 November 2015
• Published date: 01 November 2015
• DOI: http://doi.org/10.1111/jwip.12042

Community Rights to Intellectual Property in

Asia—From Rhetoric to Consensus

Naazima Kamardeen

University of Colombo

This paper deals with community rights to intellectual property, in light of the individual-style ownership

envisaged by the TRIPS Agreement. Community rights could either be the right held by traditional

communities to their indigenous knowledge, or the right held by the community at large, to demand access to

innovations that are protected by the intellectual property regime. This paper proposes to deal with the latter

aspect of community rights. It will argue that the community at large has a stake in innovation, as it provides

the foundation from which all innovation springs. The innovator should be given the requisite incentives to

continue the good work, without which development cannot take place. However, no innovation can be justif‌ied

if it does not serve the needs of society. Examining the developments in the pharmaceutical and agro-chemical

industries, this paper will advocate that access should be facilitated through a system guaranteeing that

vulnerable segments within the community are not disadvantaged due to the delays in the current system, which

effectively denies them the opportunity to share in the benef‌its of innovation. The study will compare various

jurisdictions in the Asian region to demonstrate how the lack of community rights negatively impacts on all

these communities.

Keywords community rights; intellectual property; Asia; access and benef‌it-sharing

The TRIPS agreement has been op erative for almost two decade s now.

1

One of the stated objectives of

its “parent”—the WTO, was the increa se in access through the bringing down of barriers to trade .

2

Yet,

in terms of access to patented items—includi ng essentials such as food and med icines, the level of

access has not increased at all. Rat her, we may surmise that access is slowly but surely being curtailed.

3

If this is true, then what bene f‌it has the TRIPS brought to the people whose lives it was supp osed to

benef‌it? How will people who are i n dire need of essentials, ha ve access to them? Do they have a right

to access these essentials, or should the state intervene in suc h a case? Does the public/priva te divide

matter when lives are at stake ? Is the current system prom oting the private appropri ation of public

wealth? Through a critical an alysis of each of these questio ns, this paper will attemp t to shed light on

one of the fundamental questi ons that plagues intellectual property law: where do es one draw the line of

ownership?

The paper addresses these issues by examining IP rights through an ownership model. It considers

private and public (or collective) models from a geographical perspective, arguing that the “Western”

model promotes the individual right, while the “Eastern”model promotes the collective right. It then

analyses how adherence to the Western model (which inf‌luenced the contemporary rules on IP) has

resulted in a lacuna in the legal framework to support the rights of those who hold traditional knowledge,

whether as a traditional community, or as the “community at large”, (both found in the developing nations

of Asia), and how this has led to unhealthy outcomes such as biopiracy and lack of access. It goes on to

analyse two case studies from Asia to consider how the region could overcome these diff‌iculties and secure

collective rights to IP. It concludes by examining new initiatives such as benef‌it sharing agreements that

might help to harmonise these divergent systems by providing a solution that is equitable by all

stakeholders.

©2015 John Wiley & Sons Ltd 311

The Journal of World Intellectual Property (2015) Vol. 18, no. 6, pp. 311–334

doi: 10.1111/jwip.12042

Intellectual Property Rights: Individual Vs. Collective: Whose Right Is It Anyway?

As intellectual property fundamentally belongs in the realm of private rights, (since it is seen as an

extension of property), we regard it as something that can be held against the world at large. Ownership of

this nature presupposes the exclusion of others from the realm of ownership. This section will deal with the

notion of “property”and the evolution of the right, from absolute to relative. It will also analyse the nature

of IP rights, and examine whether, apart from individual ownership, such property could be the subject of

collective ownership as well.

Property Rights: Absolute or Relative?

The notion of “property”and “rights”is something that has fascinated mankind from time immemorial.

We would like to think of both in absolute terms, because then it is easy to own and to exclude others from

the realm of ownership. However, in the modern world, we f‌ind that such an absolutist def‌inition hampers a

proper understanding of the role of property and the functions to which it may be put. Boyle argues that

“instead of an absolute, unchanging and universal shield against the world, property is now merely a

bundle of assorted entitlements that changes from moment to moment as the balance of utilities

changes”(Boyle, 1996, p.49).

Intellectual Property Rights and the Public/Private Debate

If the notion of tangible proper ty has seen such a paradigm shift, then it becomes even harder to explain

the concept of intellectual prop erty in absolute terms, as intellectual property is much less tang ible than

real property. Intellectua l property is understood to be the product of the inte llectual and creative labour

of individuals that attracts prot ection under the legal regime gove rning intellectual proper ty rights.

Since it has been seen as an exten sion of property, it has receive d the same treatment as traditi onal

property rights, and been safegu arded as a private right, to be exercis ed in rem against the world at

large.

However, as much as the role of property has changed, and been viewed as a “bundle of rights”from

which certain aspects may be removed, thus modifying the level of ownership, in intellectual property too,

we see that the absolute right of the individual to the fruits of his intellectual labour is also being challenged

and modif‌ied. One of the primary reasons for this is the public/private debate. A person may invent a new

machine that solves a scientif‌ic problem. According to the patent laws, he is entitled to a monopoly, both to

reward his innovation, as well as to allow him to benef‌itf‌inancially before the competition is allowed to

come in. However, the monopoly is for a limited period, and this is so that society may also access and

benef‌it from the invention.

There is also an underlying assumption that the individual may have obtained certain ideas and

concepts from information available in society (knowledge and ideas cannot be formed in a vacuum) and

that society thus has a right to expect some sort of benef‌it from the invention. Therefore, it would be wrong

for the individual to benef‌it from freely available common goods and give nothing in return. This is why

the Statute of Limitations was introduced in England, to put an end to absolute monopoly of individuals.

Garret Hardin’s seminal masterpiece, “Tragedy of the Commons”though it is originally thought to be a

warning against overpopulation, raises, through an interesting analogy, the idea of what would happen if

indiscriminate abuse is made of public property. He theorizes that if one farmer were to put an extra cow on

to the public grassland, he would increase his output with no cost to the grassland (one extra cow would not

put the grassland at risk of being overgrazed) but that if all the farmers were to think this way, the grassland

would be overgrazed. He points out that there is really no one to police the commons and to prevent their

abuse. He surmises that “freedom in a commons brings ruin to all.”Hardin’s theory is benef‌icial to

understand why it is dangerous to allow individuals to reap the benef‌its of common goods without giving

anything in return (Hardin, 1968).

Naazima Kamardeen Community Rights to Intellectual Property in Asia

©2015 John Wiley & Sons Ltd

312 The Journal of World Intellectual Property (2015) Vol. 18, no. 6