Collective rights versus Intellectual Property Rights at the Constitutional Court

By Mayora IP

A group weavers of traditional Guatemalan textiles filed suit challenging the constitutionality of the most important sections of laws protecting intellectual property rights alleging that the statutes, as currently structured, are invalid by congressional omission. The laws which were challenged are the Copyright and Related Rights Act, the Protection and Development of Handicrafts Act, the Industrial Property Act and one section of the Criminal Code. According to plaintiffs, Congress did not regulate collective intellectual property rights of the indigenous peoples of Guatemala with respect to textiles and clothing traditionally used by them, because intellectual property laws do not adequately protect their collective rights.

One of the justifications of the protection of intellectual property is that every person, national or foreign, who creates something derived from his intellect, capable of being marketable, necessarily invested resources and time in it, so it is appropriate to recognize such an effort. Traditional knowledge, contrary to what is protected by intellectual property rights, cannot fulfill the requirement of novelty, since it has been transmitted from generation to generation from time immemorial. The foregoing implies that the subject matter of traditional knowledge -as claimed by the weavers- cannot be protected by means of intellectual property law because it was not intended to fulfill the role. However, this does not mean that the intellectual property legal system does not provide the means for the recognition of the value of such knowledge to any given community. Any interested community may benefit economically by obtaining the protection of certain aspects of traditional knowledge by way of collective marks, certification marks, denominations of origin and geographical indications.

Yet, if the Constitutional Court declared said sections to be unconstitutional, the state of Guatemala would fail to recognize intellectual property rights explicitly, leaving right holders defenseless. The legal consequences of the declaration of unconstitutionality would be the violation of the system of intellectual and industrial property rights, which are recognized in articles 39 and 42 of the Political Constitution of the Republic of Guatemala and by multiple treaties to which Guatemala is a party. It would affect Guatemala´s competitiveness indices at the international level as there would be no certainty about property rights, specifically intellectual property rights.

Intellectual property rights are human rights of all persons in Guatemala, both national and foreign, indigenous and non-indigenous peoples; they should be recognized and protected by the State. If the Constitutional Court would declare intellectual property rights unconstitutional, the state of Guatemala would be in breach of several of its international obligations, and other states could impose considerable sanctions.