Patents and Human Rights: A Heterodox Analysis

18 Pages Posted: 26 Apr 2013

See all articles by E. Richard Gold

E. Richard Gold

McGill University - Faculty of Law

Date Written: August 1, 2012

Abstract

Intellectual property rights and human rights are often set up in opposition to one another. This article takes the heterodox view that, despite both rhetorical and real wins in the short term, framing patent law as opposed to human rights has negative medium- and long-term consequences.

Three dominant conceptions are highlighted in Part I, which can be roughly categorized as the subjugation approach, the integrated approach and the coexistence approach. These approaches differ from one another as to their conceptualization of the type of right at stake and the dominance of one form of right over the other (i.e., human rights over patent rights). Notably, all three approaches assume that the international legal order provides the appropriate forum in which to understand the relationship between human rights and patent rights.

Part II provides a critique of the three approaches presented in Part I by focusing on two fundamental problems: first, the mistaken attempt to commensurate different sorts of rights within the subjugation and integrated approaches and second, the assumption that the resolution of concerns over patent rights lies within the international rather than the domestic, legal order.

Building on the critique provided in Part II, Part III argues that the opposition of human rights with patents within international fora undermines, rather than enhances, States’ ability to address access issues on the legal level at which patents actually operate: within the domestic legal order. Addressing this problem, I argue that it is within domestic patent law and policy, properly understood and framed, that States can best ensure the appropriate balance of interests necessary to achieve overall social and economic well being.

Keywords: Intellectual property, human rights, legal theory

Suggested Citation

Gold, E. Richard, Patents and Human Rights: A Heterodox Analysis (August 1, 2012). Journal of Law, Medicine and Ethics, Vol. 41, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2256430

E. Richard Gold (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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