There is a growing narrative that intellectual property is seen as a derivative of fundamental human rights recognised by various international instruments such as the UNDP and TRIPS. But it is also important to highlight what pairs this ‘fundamental human right’ is that intellectual property’s right cannot be accepted as an absolute right and should be conditional in fact. The condition being, the welfare of society. India, among other countries, is a signatory to the instruments mentioned above and therefore has obligations to maintain those policies through legislative mechanisms. It becomes necessary to mention that India is also a signatory to other conventions which resulted in India introducing the ‘Protection of Human Rights Act, 1993’. The definition says the following : 

“...the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”

As it is evident, the definition is pretty inclusive of a lot of possible ideas. There are multiple theories which justify the existence and need for intellectual property. The most prevalent and common theory is the utilitarian theory. This theory suggests that intellectual property exists to encourage innovation to progress as a society. It states that there should be some form of commercial gain which would always incentivize creators and innovators to indulge in the process of innovation and creativity. It is important to point out here that these rights to incentivize creators are balanced with limited time frames in which creators can hold those rights due to concerns of monopoly and exploitation. Intellectual property rights can be seen as non-absolute rights, separate from human rights. Herein, emerges the requirement to draw a line between human rights and intellectual property rights. Intellectual property rights are granted by the constitutions of different countries to its citizens, often through their respective legislative bodies while, on the other hand, human rights exist with people by virtue of there being humans and not granted by any state. Intellectual property rights can be taken away in certain situations where human welfare and society’s welfare, in general, outweigh them.

This has been repeatedly made clear in various jurisdictions, especially, in scenarios of public health issues. In 2011 when Australia enacted the ‘Tobacco Plain Packaging Act’, several companies filed a challenge against the Act’s constitutional validity to the Australian High Court. The companies contended that the Act gave the government the authority to take control of their intellectual property, including logos, and that too without any solatium. The Australian High Court did not accept these arguments and instead, contentions put forward by the Australian Government were accepted. The Australian government used public health policy to argue their case.