Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions.
Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, intellectual property and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores the proper place of intellectual property rights — in particular, patent rights — in the human rights framework for intellectual property. To help facilitate a systematic and holistic study of the framework, this article advances a layered approach to intellectual property and human rights and identifies the framework's organizing principles and structural layers.
This article further illustrates the proposed layered framework with examples involving four different types of scientific productions: (1) scientific publications; (2) scientific innovations (including inventions); (3) scientific knowledge; and (4) indigenous knowledge, innovations and practices. The article concludes by exploring whether an alternative human rights basis can be found in the right to own private property — a recurring debate among policymakers, commentators and intellectual property industries as well as one that has found support in recent human rights developments in Europe.
In Patel v Mirza [2016] UKSC 42 the UK Supreme Court has considered the common law doctrine of illegality as a defence to a civil claim, of interest to Australian equity law students.
Patel had provided Mirza with £620,000 to bet on the Royal Bank of Scotland's share prices using insider information. Mirza expecting his contacts would inform him of a government announcement about the bank. Absent the announcement the betting did not take place; Mirza however didn't return the money. Patel took Mirza to court, where Mirza argued Patel's claim should fail because of the illegality of the arrangement. Shades of The Highwayman's Case, which famously ended badly. Patel succeeded in the Court of Appeal in Patel v Mirza [2014] EWCA Civ 1047, with Mirza being required to repay the money. Mirza unsuccessfully appealed to the Supreme Court.
In a media release explaining the judgment the Supreme Court explains its reasoning, stating
Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343 that “no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”. Behind this maxim, there are two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim. First, a person should not be allowed to profit from his own wrongdoing. Second, the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand. The reliance test expressed in Tinsley v Milligan [1994] 1 AC 340 bars the claimant if he/she relies on the illegality in order to bring the claim. This test has been criticised and Tinsley should no longer be followed.
The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert [1993] 3 RCS 159, is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, it is necessary to consider
a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim,
b) any other relevant public policy on which the denial of the claim may have an impact and
c) whether denial of the claim would be a proportionate response to the illegality.
Various factors may be relevant, but the court is not free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties’ respective culpability.
A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case.
Lord Kerr writes a concurring judgment elaborating on aspects of Lord Toulson’s judgment. Lord Kerr identifies that there is a choice of approaches between a rule-based approach on the one hand and on the other a more flexible approach, taking into account the policy considerations that are said to favour recognising the defence of illegality. A rule-based approach to the question has failed to lead to the predictability it sought. Further, it is questionable whether particular weight should be given to predictability where a claimant and defendant have been parties to an illegal agreement.
In the judgment the Law Lords concluded there is no inconsistency in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution is possible. An order for restitution simply returns the parties to the positon in which they would and should have been, had no such illegal arrangement been made.
Lord Neuberger however suggested that, in relation to other issues involving illegal arrangements, the approach suggested by Lord Toulson provides as 'reliable and helpful guidance as it is possible to give' Separate judgments expressing general agreement considered that, with the above clarification of the operation of restitution, there is no basis for replacing the clear-cut principle identified in Holman v Johnson and Hall v Hebert - founded on the need to maintain the integrity of the law.
