intellectual property as a human right

Ombo DM˙º - Intellectual Property As A Human Right

i

INTELLECTUAL PROPERTY AS A HUMAN RIGHT

By

OMBO DUNCAN MALUMBE*

Keywords: Intellectual Property, Intellectual Property Rights, Human Rights, Coexistence Approach

* (LLB) Mount Kenya University; 2nd Vice President of International Youth Action Against Terrorism; Chairperson of Kenya Journal of Law and Justice; Communication Director of Africa Law Times. Contact: +254 (0) 724 026 355 or [email protected]


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TABLE OF CONTENTS

i. ABSTRACT 1

ii. INTRODUCTION 2

iii. THE REALIST SCHOOL OF THOUGHT 4

iv. CONFLICTING OF HUMAN RIGHTS AND INTELLECTUAL PROPERTY

RIGHTS 6

a. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 6

b. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS 6

c. INTELLECTUAL PROPERTY RIGHTS ARE TEMPORAL 8

d. THE STATES PARTIES TO THE PRESENT COVENANT RECOGNIZE

THE RIGHT OF EVERYONE TO ENJOY THE BENEFITS OF SCIENTIFIC

PROGRESS AND ITS APPLICATIONS 9

v. CONCLUSION 10

vi. REFERENCE 11


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ABSTRACT

This paper is inspired from The Digital Migration Case1 that underwent thorough proceedings before

Judges of The High Court, The Court of Appeal2 and The Supreme Court of Kenya3. As one goes

through the case, it is clear that Intellectual Property is one among many other elements about our

Constitution that is not well addressed or because it is quite a new concept in The Constitution then

it might draw some grey lines among people who subscribe to different Schools of Thought.

In Chapter IV4 of The Constitution of Kenya, there are ample terms that describe Human Rights and

Fundamental Human Rights. It happens that under the same Chapter of The Constitution, there is a

provision that articulates on Protection of Right to Property.5 The Constitution as it speaks6 it is clear that

the protection conferred under Article 40 is not only attributing to the physical property but also the

Intellectual Property7 as long as the acquisition of the same is within the parameters of the law.8

By that precise statement, it is clear that the Kenyan Court has undermined that Human Right.9 The

Courts are failing to assert the true purpose of it being in place within the Constitution.10 This is

because The Kenyan Constitution acknowledges Intellectual Property as a Human Right and it does

not provide any lacuna that any Judge or Advocate can utilize to aver that it is not a Human Right.

Therefore, this paper will make it clear as to why Intellectual Property is absolutely a Human Right in

Kenya.

Intellectual Property is a compilation of various groups of Rights. These Rights are clustered in various categories that seem to segregate one from another and further they are described in detail. In this paper, the difference among the various Intellectual Property that exists will not be given whatsoever weight. This is due to the fact that The Kenyan Constitution is not targeting a particular segment of Intellectual Property but it classifies them as equal when it comes to linking them up with Human Rights. In order to understand why no one can question the provision of The Constitution as it states that

Intellectual Property (herein after IP) is a Human Right. The Coexistence Approach will be utilized,

as The Constitution of Kenya adopts the same Approach, and that is why, even if a different Country

might not view Intellectual Property as a Human Right, the Kenyan Constitution holds a divergent

view from the rest of those Countries or States.

1 Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR 2 Ibid n1 3 Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR 4 Bill of Rights 5 Art. 40 6 Art. 259 (3) 7 Ibid n5 8 Ibid n5 9 Royal Media Services (Supra) Para 87 10 Art. 3 (1); Art. 22; Art. 159; & Art. 160


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INTRODUCTION

Intellectual Property is not something that is born in the 20th or 21st Century. Since time immemorial

the ideologies of Intellectual Property Rights (herein after referred as IPRs) have exhibited various

conflicts, some of the said conflicts are equal to what the current society is exhibiting.

It is noteworthy that IPRs are in place to protect the author of the idea; thus, be it a Copyright, Patent,

Neighbouring Rights, Trademarks, Geographical Indication et al. It should be born within our minds

that for an idea to be protected there must be an expression of the same.11 The notion behind

protecting expressed IPRs and not just ideas in the mind, can be traced from The 17th Century.12

Since time immemorial, it was the corporations and/or The Noble Human Beings in the Society who

seem to enjoy the IPRs. It is evident that the same factor is exhibited in the current Society. This is

whereby the holders of IPRs want more material gain and forget that the Society is supposed to gain

from the same IPRs. Owing to the aforementioned views and the birth of The Agreement on Trade-

Related Aspects of Intellectual Property Rights, which is going against the purpose of International

Covenant on Economic Social and Cultural Rights, there have been many writings vis-à-vis IPRs and

Human Rights that try to address why the two Classes of Rights cannot merge or are compatible.

In this Paper, one of the factors of consideration is why Human Rights conflict with IPR. This conflict

is not the only core issue; since, the making of IPRs Human Rights does invite the question of the

standing of Corporations vis-à-vis Human Rights. It is clear that Corporation are also fighting to gain

some sort of Human Rights. In this context, Corporations come in place as they hold most IPRs such

as Patents and that means the Corporations can seek legal redress under the parenthesis of Human

Rights.

It should be noted that Corporations are not regarded as Humans in the basic sense but Persons

(Artificial or Juristic). Therefore, in a bid to understand if a Corporation can enjoy some of the Human

Rights, there is need to give a concrete definition of a corporation or company other than the one

given under Solomon v Solomon & Co. LTD13.

It is noteworthy that IPRs act as an incentive to the authors of expressed ideas; this can be noted by

the lengths the authors can take prior making the inventions public.14 Irrespective of gaining the

11 The idea of an expression to be in place differs. For some IPRs the formalities are too rigid (i.e. Patents) and for some it is less rigid (i.e. Copyrights). 12 <http://plato.stanford.edu/entries/intellectual-property/> (Accessed on The 25th Day of July 2015). 13 [1896] UKHL 1 14 <http://infochangeindia.org/trade-a-development/intellectual-property-rights/are-intellectual-property-rights-fundamental-human-rights.html> (Accessed on The 25th Day of July 2015).


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protection, the authors seem to focus more on financial gains and thus restraining the access of the

Intellectual Property (herein after referred as IP).15

It is clear that the ideology of IP being assigned Human Rights is quite a two-way traffic concept. As

much as the IP is protected as a Human Right in favour of the author of a given idea, it is clear that

the IP will always have an impact on other Human Rights. Therefore, the a million dollar question is:

can a Natural or Juristic Person approach the Constitutional Court for purposes of arguing that the

owner of the IP is infringing some of his, her or a certain class of persons Fundamental Human Rights

under the Constitution?16

15 Chapman, Audrey R. "A human rights perspective on intellectual property, scientific progress, and access to the benefits of science." WIPO/OHCHR, Intellectual Property and Human Rights, A Panel Discussion to Commemorate the 50th Anniversary of the Universal Declaration of Human Rights, Geneva, Switzerland (1999): 127-168. 16 This question is based on the very fact that some Products that enjoy Patent protection happen to be overpriced or rather unreasonably priced; hence, making those who are in need of it incapable of utilizing the Products. Therefore, will it be sane for one to seek the Court, Parliament or Executive Government to intervene as the matter gravely affects a certain class of Citizens and/or Persons? – According to how the General Comment No. 17 defines and ICESCR utilises the word “Author” it is clear that Corporations can have the ability to claim such a Human Right.


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THE REALIST SCHOOL OF THOUGHT

The object of our study, then, is prediction, the prediction of the incidence of the public force

through the instrumentality of the courts.17

Though dismissed by eminent authors or Philosophers18 like H.L.A. Hart, the articulation of The

Realist School of Thought is undisputable as one delves into it whilst undertaking comparative analysis

in the contemporary Society. Thus, most people are more concerned with what the Court will state

after the hearing comes to an end; thus, after the Judge gives the final remark as the Judgment/Ruling.

This invites the Bad Man Theory. One Sir Oliver Wendell Holmes orchestrates the theory to show how

the legislative rules are not the final word but [t]he prophecies of what the courts will do [a]re what [to be

considered as] the law."19 Basing on that definition of Law by one Sir Oliver Wendell Holmes it is of the

term fair hearing that the theory comes into play. Predominantly, the law in black and white might

provide a certain factor or an act of a certain nature if executed it will be contravention of a certain

provision of law. Nevertheless, one might end up not being sentenced, surcharged or subjected to

whatsoever liabilities as the law provides due to interpretation, consideration of facts and/or factors

engulfing the case.

It is out of such facts that the proponents of Legal Realism will stand by their School of Thought.

Ostensibly, where the law or a precedent formulated by the Court is quite questionable or more clarity

seem to be needed, the person can appeal the writings of the superior court to a higher Court.

Thus, unlike the rebuking of legislative writings as not relevant, it quite clear that in the current Society,

the courts are always working along the provisions of the legislative writings. This is through the duty

to hear and interpret the laws, essentially, the Courts are bestowed with that duty of being the dispenser

of Justice. Hence, by people having faith in the Judiciary, they will always approach the Court to vent

their legal concerns. For purposes of this paper, Legal Realism is understood as such.

Whilst undertaking the primary mandate to interpret the laws, the Court’s do have in mind what the

legislative writings provide. Thereafter, the Court will employ the ideology of the matter at hand prior

giving the final say. To these ends, it is why some scholars viewed that Legal Realism is more of a

mixture of Positivisms and Sociological School of Thought.20

17 Oliver Wendell Holmes, Jr., “The Path of the Law” (1897), in Philosophy of Law and Legal Theory: An Anthology, ed. Dennis Patterson, Blackwell, Malden, MA, 2003, 9-21, p.9; See also <http://www.westga.edu/~rlane/law/lecture18_holmes.html#_ftnref4>; See also <http://www.constitution.org/lrev/owh/path_law.htm> (Accessed on The 25th Day of July 2015). 18 <https://www.law.upenn.edu/cf/faculty/jfisch/workingpapers/75FordhamLRev1593%282006%29.pdf> (Accessed on The 25th Day of July 2015). 19 Oliver Wendell Holmes, Jr., “The Path of the Law” (1897), in Philosophy of Law and Legal Theory 20 <http://newindialaw.blogspot.com/2012/11/american-realist-school-of-jurisprudence.html> (Accessed on The 25th Day of July 2015).


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The purpose of annexing Legal Realism in this context is to acknowledge that depending on the

circumstances, one subconsciously can end up putting on a different ‘hat’ depending on the weather

exhibited. Therefore, in the Royal Media Services Limited & 2 others v Attorney General & 8 others Case

(Supra) it is noted that irrespective of the Constitution of Kenya providing that IP is a Human Right,

the High Court of Kenya21 asserted that IP was or is not a Human Right, hence, making an application

at the Constitutional Court22 was not the right rostrum to seek legal redress.

The ideology of Justice Majanja reminds aficionados of Philosophy of Law23 about The Path of The Law:

I once heard the late Professor Agassiz say that a German population would rise if you added

two cents to the price of a glass of beer. A statute in such a case would be empty words,

not because it was wrong, but because it could not be enforced (own bold). No one will

deny that wrong statutes can be and are enforced, and we would not all agree as to

which were the wrong ones (Own bold).24

It might be within the wits of one Justice Majanja that the writings of the Constitution are blurry due

to various factors surrounding IP or IPRs; or due in part to the arcane, obscure, complex, and highly technical

nature of intellectual property law and policy,25 he could not blend the IPRs with Human Rights. Therefore,

to him, it was more prudent for another Court other than the High Court of Kenya to address on the

same issue. However, owing to the fact that the Constitution bends towards Coexistence Approach,

it can be viewed that Article 40 of The Constitution of Kenya is a dogma.

21 Presided by Justice Majanja 22 High Court of Kenya 23 More so those inclined towards Legal Realism or Realist School of Thought. 24 Oliver Wendell Holmes, Jr., “The Path of the Law” (Supra) 25 Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era, 64 Fla. L. Rev. 1045 (2012). Available at: <http://scholarship.law.ufl.edu/flr/vol64/iss4/6>


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CONFLICTING OF HUMAN RIGHTS AND INTELLECTUAL PROPERTY RIGHTS

The Society is always on the verge on how to face tomorrow; thus, every situation presents a challenge

to the Human Race and in a way or the other a solution might or will always be found. These solutions

are not deemed as the absolute factor as some of them invite new challenges.

The appreciation of IP is not something of this Century as it has been provided herein above; however,

as time develops, the urge to proffer more protection to IP has gained more attention from IP scholars

and those inclining towards it for whatsoever reasons they may have at the back of their minds.

As stated that the IP is protected under various legal documents, it will be necessary to peruse through

a few of them prior addressing the matter any further.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

It is noted that the Universal Declaration of Human Rights (hereinafter referred as UDHR) does

afford the words that aver the need to protect Property26. It is also noted that the UDHR is not a binding

legal instrument; however, some of its provisions have attained what is termed as Customary

International Law.27

Eleanor Roosevelt:

In giving our approval to the declaration today, it is of primary importance that we keep clearly

in mind the basic character of the document. It is not a treaty; it is not an international

agreement. It is not and does not purport to be a statement of law or of legal obligation. It is

a declaration of basic principles of human rights and freedoms, to be stamped with the

approval of the General Assembly by formal vote of its members, and to serve as a common

standard of achievement for all peoples of all nations.28

Predominantly, this were the crawling stages of the UDHR; however, as time develops, various

scholars have averred in favour of UDHR being a Legal text attaining or some of its provisions having

attained the status of Customary International Law.29

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS

This International Legal instrument is born from the rich texts of the UDHR. Being regarded as the

Second Generation Rights, The International Covenant on Economic, Social and Cultural Rights

(herein after referred as ICESCR) is now being given a divergent view. Most legal Scholars and

26 Art. 17 & 27 of The UDHR 27 <http://www.fao.org/docrep/005/y4430e/y4430e04.htm>; See also, <http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1396&context=gjicl> (Accessed on The 25th Day of July 2015). 28 Hurst Hannum <http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1396&context=gjicl> (Accessed on The 25th Day of July 2015). 29 Hurst Hannum (Supra)


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Institutions are arriving to the ideology that International Covenant on Civil and Political Rights

(herein after referred as ICCPR) and ICESCR are of equal weight and they should be given equal

concern by all Nations.30 Therefore, when delving into this context, it is imperative to have in mind

that ICESCR are equally valuable as the ICCPR, which are termed as First Generation Rights.

ICESCR:

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(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.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full

realization of this right shall include those necessary for the conservation, the development

and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable

for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the

encouragement and development of international contacts and co-operation in the scientific

and cultural fields.31

Prior delving into this paper any further it will be necessary to review the diction utilized by an

Assistant Professor Prabhash Ranjan32. His phraseology is quite convincing; however, the grip of his

paper “Are intellectual property rights fundamental human rights?” vis-à-vis what an author means is quite

astonishing.

In precise his paper tries to distinguish what IPRs can be offered Human Rights tag and those which

cannot, the same paper provides that the word “author” solely refers to factors surrounding

Copyrights and nothing to do with Patents.

Prabhash Ranjan argues that:

Reference to the word 'author' implies a reference to copyright. Protecting the moral and

material benefits of authors can certainly not mean protecting the benefits of a patent

inventor or plant breeder because the ordinary meaning of the word 'author' does not

30 Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997 <https://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html>; See also, Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights <https://www.escr-net.org/docs/i/425445> (Accessed on The 26th Day of July 2015) 31 Art 15 of The ICESCR 32 Assistant Professor at South Asian University


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include an inventor or breeder (Own bold). Further, the words 'moral and material

benefits' do not refer to the kind of monopoly benefits that an IPR holder enjoys in an

IP framework (Own bold).33

The simple ideology of reading sentiments in unison seem to be ignored under the paper of one

Assistant Professor Prabhash Ranjan. Whilst going through Article 15 (1) – (4) and more so Article

15 (1) (a-c) it is quite vivid that the provisions of the law accommodates other IPRs other than

Copyrights. If the Vienna Convention on the Law of Treaties (herein after referred as VCLT) is an

imperative legal instrument in this matter, then the natural term of the diction “author” should mirror

the context of where it was utilized.34 ICESCR provides that: The States Parties to the present

Covenant recognize the right of everyone [t]o benefit from the protection of the moral and

material interests resulting from any scientific, literary or artistic production of which he is

the author (Own bold).35 It is quite clear that the provision accommodates all IPRs; thus, by

specifically stating “any scientific, literary or artistic production.”

The author in this context (ICESCR) is the Patent, Copyright, Trademark, Trade Secret, Design

Holder etc. this is because, most rights (if not all) that emanate from scientific processes or procedures

are more of Patents.

It is clear that the conflict emanating in relation to IPRs and Human Rights is not far from what is

under Article 15, more so sub clause (c) that entails the diction “everyone”. To some extent, that term

seem to only accommodate natural persons.36

INTELLECTUAL PROPERTY RIGHTS ARE TEMPORAL37

The certainty of this sentiment is undisputable. As such, each State will install provisions that suit its

own Jurisdiction. However, something that should not be ignored is that the basic and most known

fundamental Human Rights also have derogation clauses, polices and/or regulations.38 Thus, as much

as they are Fundamental Human Rights, they are temporal in one way or the other. Therefore, by

33 Prabhash Ranjan <http://infochangeindia.org/trade-a-development/intellectual-property-rights/are-intellectual-property-rights-fundamental-human-rights.html> (Accessed on The 25th Day of July 2015). 34 “INTERPRETATION OF TREATIES: GENERAL RULE OF INTERPRETATION” Art. 31 (1) of The VCLT: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 35 Art. 15 (1) (c) of The ICESCR 36 Everyone – it does not solely refer to Natural Person as delving into the Context of Art. 15 of ICECSR it accommodates the Author in it; hence, even the Juristic Person can and will enjoy this Human Right. The General Comment No. 17 (Supra) lauds the same ideology under Paragraph 7 and 8. 37 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant), 12 January 2006, E/C.12/GC/17, available at: http://www.refworld.org/docid/441543594.html (accessed 26 July 2015) 38 For instance: The Principle of Jus Bello, Jus Bellum etc. when executing such measures some Fundamental Human Rights such as Right to Life is not always applauded to by the persons taking part in those activities; with regards to that, there are four (4) Geneva Conventions that address such matters. The ICCPR also provides for it limitations.


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arguing that IPRs are temporal, hence, cannot and should not be a Human Right then that is a far-

fetched argument.

In jogging ones memory as to why IPRs cannot be disregarded as Human Rights due to the temporal

period offered by the laws:

The ability of a Human Being to live until the age of 70 or 80 is not something certain just like

how Trade Secrets are always kept by people whom if they understand their virtuous obligation

they cannot divulge, and if they do not understand their virtuous obligation, they will divulge;

hence, making the protection of Trade Secret quashed.

It is not in contention as to if the same is temporal or not but how IPRs influence other Human

Rights.39

THE STATES PARTIES TO THE PRESENT COVENANT RECOGNIZE THE RIGHT

OF EVERYONE TO ENJOY THE BENEFITS OF SCIENTIFIC PROGRESS AND ITS

APPLICATIONS40

It is out of this provision of the ICESCR that the author of this paper comes up with the following

ideology: “IPRs as a Human Right is a Two-Way Traffic Concept.” Thus, it introduces the following:

The Author of The IPRs, The Utiliser(s) of The IPRs and The Government.

As much as you are the author of the IPRs, it does not mean you ares the only beneficiary of the IPRs;

hence, there is need to strike a balance between the moral and material benefits of the author and the third

parties who utilize those IPRs. In precise, if the author’s fee towards the IPRs is unreasonable, then

the ability of the Society to benefit from the IPRs will be very difficult, and that is when the

Government(s) is/are to be invited to discuss the matter.

The overpricing will be meeting the needs of the authors but will defeat the basic reason of having

such Rights having protection under the ICESCR41:

The right to benefit from the protection of the moral and material interests resulting from

one’s scientific, literary and artistic productions seeks to encourage the active contribution of

creators to the arts and sciences and to the progress of society as a whole.42

Therefore, the IPRs should be easily accessible to a reasonable number of persons across the

Jurisdiction under which the author seeks the IPRs to be recognized as registered, that is if such

measures are called for.

Audrey R. Chapman:

39 Art. 15 (1) (b) of The ICESCR 40 Art. 15 (1) (b) ICESCR 41 Art. 15 (1) (c) 42 General Comment No. 17 (Supra)


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A human rights approach to intellectual property takes what is often an implicit balance

between the rights of inventors and creators and the interests of the wider society within

intellectual property paradigms and makes it far more explicit and exacting.43

It is clear that by considering the Coexistence Approach it does not imply that the Corporations will

have high monopoly, and charge unreasonable prices on their products or other materials that are

produced due to the IPRs, rather, it will help consider the capability of the persons to access and

utilize the IPRs to the progress of Society as a whole.

[A]ll Governments [are reminded] of the primacy of human rights obligations over economic policies

and agreement.44 With such measures taking course, it refers to the challenges that are posed by World

Trade Organisation45 and other Institutions that are pro-economic activities; hence, they seem not to

strike a balance between Human Rights and economic gains.

It is therefore clear that, the protection of IPR is not only significant towards the author, but the

utilisers. This is because it might touch on other areas such as health46. Health does not solely mean

the victims of a certain flue or infection but also the scientist who could utilize a certain inventions in

a bid to undertake certain research.47

CONCLUSION

It is advisable not to view the ideology of IPRs merging with Human Rights as an inept concept.

However, one should give it a prism view. The beauty and ugliness of the concept, if one has gone

through the paper with a mind of understanding the context, one will realise that, the whole ideology

of IPRs and Human Rights should fall under Coexistence Approach. This is because, it helps to curb

a lot of factors that seem to affect those who need the benefits of IPRs but happen to be denied the

same due to their financial, geographical surroundings. However, as much the General Comment No. 17

(Supra) elaborates on how to view Art. 15 of The ICESCR, it should be noted that it fails to

acknowledge why it is necessary to accommodate all IPRs as the writings of Intellectual property rights and

human rights Sub-Commission on Human Rights resolution 2000/7.

43 <http://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_5.pdf.> (accessed 26 July 2015) 44 Intellectual property rights and human rights Sub-Commission on Human Rights resolution 2000/7 45 World Trade Organisation is recognized of coming up with The Agreement on Trade-Related Aspects of Intellectual Property Rights (referred as TRIPS Agreement of 1995). TRIPS is deemed to cause the conflicting interest between Human Rights and Intellectual Property rights at large. 46 Weissbrodt, David, and Kell Schoff. "Human Rights Approach to Intellectual Property Protection: The Genesis and Application of Sub-Commission Resolution 2000/7." Minn. Intell. Prop. Rev. 5 (2003): 47 Susan Corbett <http://www.victoria.ac.nz/law/centres/nzcpl/publications/human-rights-research-journal/publications/vol-2/Corbett.pdf.> (accessed 26 July 2015)


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<http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1396&context=gjicl>

(Accessed on The 25th Day of July 2015).

Prabhash Ranjan <http://infochangeindia.org/trade-a-development/intellectual-property-

rights/are-intellectual-property-rights-fundamental-human-rights.html> (Accessed on The 25th Day

of July 2015).

<http://newindialaw.blogspot.com/2012/11/american-realist-school-of-

jurisprudence.html> (Accessed on The 25th Day of July 2015).

<http://plato.stanford.edu/entries/intellectual-property/> (Accessed on The 25th Day of

July 2015).

<http://www.constitution.org/lrev/owh/path_law.htm> (Accessed on The 25th Day of July

2015).

<http://www.fao.org/docrep/005/y4430e/y4430e04.htm> (Accessed on The 25th Day of

July 2015).

<http://www.westga.edu/~rlane/law/lecture18_holmes.html#_ftnref4> (Accessed on The

25th Day of July 2015).

<http://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pn

l_98_5.pdf.> (accessed 26 July 2015)

<https://www.law.upenn.edu/cf/faculty/jfisch/workingpapers/75FordhamLRev1593%282

006%29.pdf> (Accessed on The 25th Day of July 2015).

Chapman, Audrey R. "A human rights perspective on intellectual property, scientific

progress, and access to the benefits of science." WIPO/OHCHR, Intellectual Property and Human

Rights, A Panel Discussion to Commemorate the 50th Anniversary of the Universal Declaration of

Human Rights, Geneva, Switzerland (1999): 127-168.

Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014]

eKLR

Hurst Hannum

<http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1396&context=gjicl> (Accessed

on The 25th Day of July 2015).

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2000/7

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International Covenant on Economic Social and Cultural Rights

Limburg Principles on the Implementation of the International Covenant on Economic,

Social and Cultural Rights


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Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht,

January 22-26, 1997

Oliver Wendell Holmes, Jr., “The Path of the Law” (1897), in Philosophy of Law and Legal

Theory: An Anthology, ed. Dennis Patterson, Blackwell, Malden, MA, 2003

Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era, 64 Fla. L.

Rev. 1045 (2012). Available at: <http://scholarship.law.ufl.edu/flr/vol64/iss4/6>

Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR

Solomon v Solomon & Co. LID [1896] UKHL 1

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The Constitution of Kenya

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.

17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests

Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art.

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Universal Declaration on Human Rights

Vienna Convention on the Law and Treaties

Weissbrodt, David, and Kell Schoff. "Human Rights Approach to Intellectual Property

Protection: The Genesis and Application of Sub-Commission Resolution 2000/7." Minn. Intell.

Prop. Rev. 5 (2003)