01/31/2012 02:08 pm ET Updated Apr 01, 2012

Are Property Rights and Human Rights in Competition?

A recent U.S. Supreme Court decision, Golan v. Holder, upheld federal legislative section 514 of the Uruguay Round Agreements Act that removed works from the U.S. public domain. This is a logical result of a series of treaties stretching back to 1886. It is clear from this decision that the U.S. Congress has broad authority to determine protectable intellectual property and international standards determined by treaty are dominant.

While Justice Kagan did not participate in the decision, two dissenting Justices, Breyer and Alito, focused on the U.S. Constitutional language involving promoting the progress of science and determined that the statue failed to encourage the production of new works. Their focus was upon the historical context of the Constitutional Copyright Clause while the majority opinion, written by Justice Ginsburg, focused on the contemporary treaties. A secondary issue for the dissent was the expense and difficulty of determining if a given work has a now restored copyright and, if so, the identity of the current holder. The dissent believed that a less demanding statute would have met the treaty's obligations.

Representatives of the U.S., Canada, EU and 22 member states, among others, have recently signed another intellectual property protection treaty, the Anti-Counterfeiting Trade Agreement. Controversial aspects of this treaty include the proposed creation of a governing body outside established international organizations, secrecy surrounding negotiations, potential threats to privacy, and a chilling of communication without the traditional presumption of innocence and probable cause to conduct searches. The treaty is part of the intersection of intellectual property protection and open-source communications. Both sides of this debate have significant policy arguments and political capital.

Human rights became a notably visible fixture of U.S. foreign policy starting with the Carter administration (1977-1981). The Uruguay Round negotiations ending in 1994 introduced uniformity into international intellectual property law. Since then there have been policy debates about such issues as open access to information generally and significant medical advances (vaccines) in particular. Should medical advances be essentially free in the third world, and if so, will this reduce research and development investments by major corporations? While one may assert that the protection of property is an essential human right, the competing argument addresses other human rights such as freedom of expression, and access to education and health care. Additionally many commentators find property security an essential element in economic progress. In contrast, affordable health care is frequently asserted to be among the fundamental universal human rights. Reconciling the two points of view will require thoughtful analysis and buy-in by influential international corporate and political leaders.

Twitter's recent announcement concerning compliance with national censorship requirements adds a popular dimension to the information access debate. In the modern world timely information is both a source of wealth and political power. To what extent is this wealth and power subject to private ownership or governmental control? Is it possible to have too much concentrated ownership of information? Are property rights and human rights in competition?