Intellectual Property: A Human (Not Corporate) Right

The Challenge of Human Rights: Past, Present and Future 312 (David Keane & Yvonne McDermott eds., 2012)

17 Pages Posted: 26 Jul 2014

See all articles by Megan M. Carpenter

Megan M. Carpenter

University of New Hampshire School of Law

Date Written: 2012

Abstract

This chapter seeks to distinguish between intellectual property rights the existing legal mechanisms for intellectual property protection – and the right to intellectual property. The right to intellectual property is a human right. Intellectual property rights, instrumental in nature and codified in legal frameworks around the world, are not. Rather, intellectual property rights as they exist are both over- and under-inclusive in their protection of the right to intellectual property. However, the right to intellectual property exists for everyone, and a human rights perspective on IP should change the framework by which we evaluate and construct the legal system, expose the flaws of a system designed to primarily protect corporate interests, and present possibilities for a more inclusive approach.

The analysis begins in Part l with a discussion of the human right to the moral and material interests of creators, as that right has been embodied in an international human rights framework over time. In Part 2, I discuss intellectual property rights - their importance and relevance to the human rights detailed in Article l5(1)(c) of the International Covenant on Economic, Social, and Cultural Rights. Creations of the mind are not only fundamental to personhood and community, but they serve as a primary economic vehicle on the global stage and have the potential to facilitate the ability of creators to access an adequate standard of living in remote areas and disadvantaged communities. In Part 3, I discuss General Comment 17 of the CESCR, which gives guidance and effect to the human rights provisions found in Article 15(1)(c). I conclude that for the rights in Article 15(l)(c) to be realized, they must be perceived as a fundamental aspect of intellectual property law and policy. Protection and respect for the moral and material interests of creators, the right to intellectual property, is a human right; and as such, human rights discourse must inform intellectual property policy. This conclusion has implications both for the intellectual property law community and the human rights community: to forget that human creators are at the centre of scientific and artistic innovation works to the detriment of effective IP policy; to avoid the legal mechanism by which the rights of creators are protected works to the detriment of human rights.

Keywords: intellectual property, human rights, United Nations, international law

JEL Classification: K33, O34

Suggested Citation

Carpenter, Megan M., Intellectual Property: A Human (Not Corporate) Right (2012). The Challenge of Human Rights: Past, Present and Future 312 (David Keane & Yvonne McDermott eds., 2012), Available at SSRN: https://ssrn.com/abstract=2470070

Megan M. Carpenter (Contact Author)

University of New Hampshire School of Law ( email )

Two White Street
Concord, NH 03301
United States
6035135100 (Phone)

HOME PAGE: http://https://law.unh.edu/person/megan-m-carpenter

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