Intellectual Property Rights and Human Rights: Coinciding and Cooperating

Posted: 7 Apr 2008 Last revised: 13 Mar 2013

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of Law

Abstract

The discourse on the interface between intellectual property rights (IPR) and human rights is relatively recent. The debate was sparked at the end of the 1990s with the adoption of resolutions by several international bodies and since then, the literature on the topic has grown. The debate has centered on whether IPR and human rights coexist or are in conflict. The conflict approach sees human rights and IPR as fundamentally conflictual rights, so that the first must necessarily win over the second. The coexistence approach sees both rights trying to answer the same question i.e. where to strike the right balance between giving an incentive to create and innovate whilst insuring the public has sufficient access to such creations and inventions, although disagreeing over where to strike that balance. The majority of commentators have accepted or assumed that the two were in conflict and focused on the resolution of these conflicts. Moreover, some of this literature and the documents issued by the UN institutions remain at the general and/or political, even demagogic level.

However, in order to determine the precise nature of the relationship between human rights and IPR in depth, one has to revert to the fundamentals of IPR and therefore their justifications and aims and then examine how the legislature has transcribed these aims. This analysis reveals two important findings. First, there is no intrinsic conflict between IPR and human rights (at least no more than between other human rights themselves if any). This is because IPR are themselves human rights and for this reason, they share the same goals as other human rights (sections 1-3). To this end, the article gives concrete examples and lists the areas where such absence of conflict exists (section 3). However, in some (rare) cases, real conflicts indeed occur because an excess of IPR protection results either from the legislation or from its interpretation by judges, or both. What needs to be done in these situations is to curtail IPR which do not respect other human rights and find specific tests so that courts can rectify the excess and the right balance can be achieved (if this cannot be solved internally (within the intellectual property laws themselves) by legislatures). Second, human rights and IPR do not simply coexist but in fact most of them coincide from the outset, that is, they have the same goal (e.g. the protection of privacy, of property or freedom of speech) and as a result, in most cases, because of this similarity or identity of goals, they even cooperate (section 4). The article focuses on EU law and the four main IPR namely, copyright, patents, trade marks and designs.

Keywords: intellectual property rights, patent, copyright, trade marks, designs, human rights

Suggested Citation

Derclaye, Estelle, Intellectual Property Rights and Human Rights: Coinciding and Cooperating. Common Market Law Review, 2008, Available at SSRN: https://ssrn.com/abstract=1116010

Estelle Derclaye (Contact Author)

University of Nottingham, School of Law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

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