Problems of ensuring the rights and freedoms of indigenous peoples: experience of Ukraine and foreign countries

The paper presents an analysis of the constitutional and legal status of indigenous small-numbered peoples and its features in Russia and foreign countries. Special attention is paid to the analysis of sources of international law and national legislation on this issue. The author's point of view on this problem is formulated.

The rendezvous between intellectual property rights and human rights has awakened slumbering legal spirits. Miscellaneous legal phenomena are now nestled in the intersection between intellectual property rights and human rights. However, the interplay between human rights and intellectual property rights is bizarrely characterized by amity and hostility. Naturally, therefore, situating indigenous intellectual property at the intersection of intellectual property and human rights becomes a daunting task. However, the dilemma is often overstated especially from the point of view of conventional intellectual property rights. At the outset of this Article, I shall be exploring the history and the development of the relationship between human rights and intellectual property rights. In the followng section, I shall be examining the extent to which intellectual property rights are entrenched in the international human rights instruments. The last section shall be devoted to exploring the phenomenon of locating indigenous peoples' rights at the interface between intellectual property rights and human rights and reflecting on the ensuing issues—an aspect which has seldom been considered in the existing literature.

The intersection of intellectual property and human rights is a relatively new site in the search for balance in intellectual property law and policy. Although this intersection opens up intellectual property to a unique kind of interdisciplinary analysis, only the human rights system appears to have seized the opportunity, while its intellectual property rights counterpart remains reluctant to engage. There are, so far, different competing first impressions over the nature of the intersection between intellectual property and human rights. Despite empirical credence of the conflict narrative, the co-existence of complementary thesis of the intellectual property and human rights interface has greater prospects for a meaningful and balanced rapprochement between the two. This chapter argues for critical scrutiny of the human rights appeal of intellectual property rights in order to avoid its potential for being hijacked by stronger stakeholders at the expense of their weaker opponents for whom intellectual property rights have strong paradoxical ramifications.

Human rights and fair access to COVID-19 vaccines: the International AIDS Society–Lancet Commission on Health and Human Rights

Beyond Evidence: The Moral Case for International Mental Health

Since its inception in 1994, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has embodied the orthodox view that enforcing strong intellectual property rights (IPRs) is necessary to solve problems of trade and development. The Doha Declaration of 2001 offered short periods of special dispensation, especially to least developed countries, and proclaimed one goal to be the promotion of “access to medicines for all.” Nonetheless, it is important to recognize that the Declaration did not disturb the orthodox view of strong IPRs reflected in TRIPS. The editors of this collection reject this view and the traditional development theory that underlies it, particularly the theory’s binary model of the world as comprising developed countries and all the rest who must follow the IPR-laden path to development. The editors share the conviction that the TRIPS regime of strong IP rights is increasingly out of phase with the shifting geopolitical dynamics of multilateralism in international relations, a multilateralism in which human rights has become a progressively more influential factor in shaping trade and development policy. The editors of this collection ask, How can TRIPS mature further into an institution that supports a view of economic development which incorporates the ensemble of human rights now seen as encompassing a more comprehensive set of collective interests that includes public health, environment, and nutrition? In particular how can this 21st century congregation of human rights provide a pragmatic ethic for accomplishing a rapport with IPRs in the new landscape of development policy? Addressing such questions, the chapters in the first part of the collection shed new light on recent deployments of human rights ethics, international treaty obligations, and domestic law that have had success in reshaping IPRs, deployments made in developing countries and the BRIC group. The chapters in the second part make new proposals and recommendations for the further use of human rights and related ethics to resolve conflict over IPRs in ways that can benefit less developed countries. Before summarizing the chapters, the Introduction briefly discusses the conflict between intellectual property and human rights, a seemingly inevitable clash, especially between patent rights, given their continuing expansion in the pharmaceutical and biotechnology sectors, and human rights, which now comprise a wider array of collective interests. The conflict between patent rights and human rights is widely understood as expressing a particularly difficult form of the familiar tension between efficiency and dispersion, between encouraging innovation and promoting fair distribution. This dominant view of the conflict bears scrutiny. Why? Because the economic case for patent rights as the engine of economic growth is not well-supported. In consequence, it cannot be taken for granted that the moral virtue of wider distribution of patented goods, especially pharmacological products, exacts a high price on economic growth and development. In this light, the Introduction concludes with some useful principles for human rights activists to counter what should be recognized as the uneasy case typically made for strong protection of patent and other IPRs.

Human beings by virtue of their being human, posses certain basic and inalienable rights which are commonly known as human rights. These rights are essential for all the individuals irrespective of any criteria, as they are consonant with their freedom and dignity and are conducive to physical, moral, social, economic and spiritual welfare. These are also necessary, as these provide suitable conditions for the material and moral enlistment for all human beings. With the advent of science and technology in the era of Economic Globalization the concept of human rights has assumed a new dimension. The paradigm of Universal Declaration of Human Rights (UDHR) is being steadily, but surely, being supplanted by that of trade-related, market friendly human rights (TRMFHR) under the auspices of contemporary globalization. Globalization has been a successful means for human development in many aspects but, it has also introduced rapidly advancing threats to the human right to environment. The emergent paradigm insists upon the promotion and the protection of the collective human rights of global capital, in ways, which justify corporate well being and dignity even when it entails continuing gross and flagrant violation of human rights of actually existing human beings and communities. The study of environment as a human right cannot be separated from biology, ecology, economics, medicine, political science, psychology and public administration. The contemporary development of Globalization resulted to a new concept of ‘industrial agriculture’. In modern agriculture, the focus is rapidly shifting to biotechnological means to produce transgenic varieties utilizing the Plant Genetic Resources (PGRs) of the world’s biodiversity. Recombinant technology and genetic engineering now permit the creation of desirable varieties with a specific trait, not available within the gene pool. Development of transgenic plant varieties or breeding new varieties of plants require investment in terms of skill, labour, material resources and funds, and may take many years’, intellectual effort and technological experiment. Therefore, it attracts Intellectual Property Protection (IPP). Others so as to deprive its breeder of the opportunity to profit adequately from his investment may in many cases readily reproduce a new variety, once released. Granting to a breeder of a new plant variety, the exclusive right to exploit his variety, both encourages him to invest in plant breeding and contribution to the development of agriculture, horticulture and forestry. Breakthrough in genetic engineering, availability of Intellectual Property Rights (IPR) on seeds, transgenic plants, genetically modified crops and globalization of agricultural trade are causing apprehension and threat of genetic pollution which has a direct impact upon the right to environment and other human rights as well. Environmental degradation and harm arising out of unsustainable practices of development, and the conflict between environmental rights and other human rights cannot be righted unless more is done by way of major structural and substantive reform to environmental protection. This paper is limited in it approach as it does not focus on scientific aspects of agricultural biotechnology rather it seeks to address some legal issues revolving around intellectual property rights over agricultural biotechnology, environment, human rights and sustainable development in Indian perspective. The present work examines the interrelationship between human rights and environment, and the soundness of the idea of human rights to a satisfactory environment. In this paper, an attempt has been made, to explore, how agricultural biotechnology has assumed significance in the present global economy, and its possible effects upon the environment and the realization of other human rights in India. An attempt has also been made to give a brief account of the various legislative measures adopted at the national level, considering the development-taking place at international level and the concept of sustainable development as a possible solution in this regard.

The objective of this chapter is to critically re-examine the 1996 decision of the Constitutional Court of South Africa with regard to the constitutional status of intellectual property rights in South Africa in the light of the current debates on the relationship between intellectual property and human rights in South Africa. The chapter equally questions the view of those who contend that intellectual property rights fall within the scope of the constitutional protection of the right to property in South Africa. This will be done by critically assessing some of the cases in which South African courts have dealt with the interface and tensions between intellectual property rights and other human rights. Furthermore, the chapter contends that, even if one takes the view that intellectual property rights fall within the scope of the constitutional protection of the right to property, this should not constitute an impediment to the implementation of measures aimed at protecting the public health, such as measures relating to the plain packaging of tobacco products in South Africa.

The proposed article examines specific aspects of regulating the legal status of indigenous peoples of Ukraine and their rights as an element of its regulation. It was established that the rights of the indigenous peoples of Ukraine must be considered in the context of their legal status. It was determined that the legal status of the indigenous peoples of Ukraine is based on several international legal acts and the provisions of current national legislation. Given the existing classifications of legal status, the legal status of Indigenous peoples can be considered a special legal status due to its belonging to a particular group of people. The article examines the existing scientific controversy regarding the definition of the concept of “Indigenous peoples,” the basis of which is proposed to be defined based on its legal definition in the Law of Ukraine “On Indigenous Peoples of Ukraine.” The main characteristics of the indigenous people, distinguished by modern scientists in the field of law, are summarized. Broad and narrow approaches to understanding the indigenous people are determined depending on the number of such signs. It was established that the current Law of Ukraine, “On Indigenous Peoples of Ukraine,” demonstrates a three-level approach to the legal regulation of the rights of Indigenous peoples, consolidating them, in fact, into three groups: those that determine legal personality, fundamental rights, and others. However, the current legislation needs to allow to clearly define the legal markers of such a gradation and a clear understanding of the separation of fundamental rights and the rights provided for by individual articles of the profile law. The legal uncertainty of the mechanism of guarantees for the protection of the legal status of the indigenous peoples of Ukraine and its protection is established, as well as the need for further scientific research to improve the understanding of existing guarantees at the theoretical and legal level and their development at the regulatory level. Keywords: indigenous people, legal status, rights, guarantees, responsibility.

Human rights' limitations in patent law

The Colour of Copyright

The investment activity is diverse and can be carried out with the use of intellectual property rights in accordance with the current international and Russian investment law. The article aims to identify the specifics of the application of intellectual property rights as investments and the implementation of intellectual investments, i.e. investments endowed into intellectual property rights. The objectives of the study are to consider the categories of an investment and object of investment activity, intellectual property, exclusive and other intellectual rights, as well as to analyze and determine the features of legal regulation of the activity in question at the international and national levels in the Russian Federation. Based on the results of the systematic analysis with the use of formal legal, comparative and other research methods, it is concluded that investments as a property in a broad sense may include both exclusive and other non-personal intellectual property rights to the results of intellectual activity and equated means of individualization of goods, works, services and enterprises. At the same time, they exclude intellectual property itself as a set of various types of intangible products, moral and other personal non-proprietary intellectual rights by virtue of their inalienable and non-transferable character. It is argued to be the same with respect to the object of investment activity, i.e. the property which the investment is endowed in and is capable to bring income to the investor in the future. Investments into such intellectual property rights can be called as intellectual investments.The legal regulation of investment activity with the use of intellectual property rights has a dual character (in the sense that it is carried out by different investment legislative acts with the similar subject of their regulation) and depends on the type of a particular object used. If intellectual property rights are invested in fixed capital, then they are to be recognized as capital investments and are governed by the Federal Law of February 25,1999 No. 39-FZ “On Investment Activity in the Russian Federation Carried out in the Form of Capital Investments”. If intellectual property rights are used as the object of investment activity, i.e. where investments are endowed in, such intellectual investments are subject to the regulation by the Law of the RSFSR of June 26, 1991 No. 1488-1 “On Investment Activity in the RSFSR”.

The World Trade Organization (WTO) has sometimes been portrayed as being at odds with the protection of human rights. This article takes issue with this perception, both generally and with specific reference to WTO agreements/activities in the areas of intellectual property (IP) and competition policy. The rules and procedures of the WTO are directly supportive of civil rights in the sense of freedom to participate in markets and freedom from arbitrary governmental procedures. In addition, the system contributes to development and to the realization of broader economic, social, and cultural rights, by stimulating economic growth and thereby helping to generate the resources that are needed for the fulfilment of such rights. The article examines various human rights and public interest rationales for the protection of intellectual property rights (IPRs). The recent amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to facilitate access to medicines in the event of public health emergencies is outlined. With respect to competition policy, such policy constitutes an important aspect of governance in successful market-based economies. There is a clear need for cooperative approaches to the implementation of national competition policies. The appropriate scope and venue for such cooperation are a matter for further deliberation. Copyright 2006, Oxford University Press.

Traditional knowledge offfers significant contribution to the intellectual creations. While authors of intellectual creations are protected within the intellectual property rights regime, the authors of traditional knowledge, however, are not. Intellectual property rights regime offfers certain exclusive rights over the innovations of private authors leaving holders of traditional knowledge aside. Given the collective nature of knowledge held traditionally by a community, and unknown in the intellectual property rights system, traditional knowledge faces complexity to be included within the existing intellectual property rights system, and hence, demands alternative protection regime. This article argues human rights approach as an alternative protection regime for the traditional knowledge – the knowledge mostly held by the indigenous communities. The article examines specific human rights provisions embodied in the international bill of human rights pertaining to both right to enjoy a culture and right to enjoy ‘moral and material’ interests arguing that traditional knowledge form a part of culture, and that such culture-oriented right generates economic interests akin to that of intellectual property right system, albeit within the framework of human rights. While the Saami are the indigenous people holding diverse traditional knowledge of great importance, the article also addresses the specific provisions of the Draft Nordic Saami Convention in order to examine how efffectively the Saami’s traditional knowledge right is protected within the regime of human rights.

The issue under investigation concerns whether personal data or personal information from the point of view of intellectual property constitutes as such a commodity or economic potential, which may be subject to alienation and registration as an object protected by the intellectual property system or represent a non-commercial object, without circulation in civil relations, with a special legal regime, connected to the fundamental human rights and freedoms. Recognition of personal data and other categories of information, related to the person (geolocation data, user-generated content) in terms of intellectual property rights as objects of civil rights, would allow the development of the data market, necessary for the functioning of innovative technologies on big data, cognitive calculations, the Internet of goods, and bringing these technologies into a legal and civilized field. The objective of the article is to appreciate whether personal data is subject to any intellectual property rights by the assessment of EU jurisprudence in line with national legal framework of the Republic of Moldova.