Reconceptualizing Intellectual Property Interests in a Human Rights Framework

Abstract:     
Since the establishment of the World Trade Organization and the entering into effect of the TRIPs Agreement, government officials, international bureaucrats, intergovernmental and nongovernmental organizations, courts, and scholars have focused more attention on the interplay of human rights and intellectual property rights. For example, the U.N. Sub-Commission on the Promotion and Protection of Human Rights recently noted the considerable tension and conflict between these two sets of rights. To avoid these conflicts, the Sub-Commission recommended the primacy of human rights obligations over economic policies and agreements.

While this hierarchy of rights appears straightforward, the situation is actually more complicated because some attributes of intellectual property rights are protected in international or regional human rights instruments. Both the Universal Declaration of Human Rights (UDHR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR), for example, recognize the right to the protection of the moral and material interests resulting from an individual's scientific, literary or artistic production. In light of these human rights instruments, it is difficult to argue that intellectual property laws and policies should always be subordinated to human rights obligations in the event of a conflict between the two. Instead, a careful and nuanced analysis of the various attributes of intellectual property rights is in order.

This Article begins by providing a brief history of the drafting of article 27(2) of the UDHR and article 15(1)(c) of the ICESCR. It recaptures the politically-charged environment under which the two instruments were created and the controversy surrounding the protection of moral and material interests in intellectual creations. The article then discusses the various attributes of intellectual property rights that are protected by international or regional human rights instruments and distinguishes these human rights attributes from others that have no human rights basis at all. The article also explores approaches that have been used to resolve conflicts between human rights and the non-human rights aspects of intellectual property protection. It concludes by highlighting the challenges confronting the development of a human rights framework for intellectual property.

Accepted Paper Series