Challenges to the Development of a Human Rights Framework for Intellectual Property
INTELLECTUAL PROPERTY AND HUMAN RIGHTS, Paul L.C. Torremans, ed., 4th edn, Kluwer Law International, 2020, Forthcoming
20 Pages Posted: 2 Nov 2014 Last revised: 23 Oct 2019
Date Written: November 1, 2014
Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental organizations, civil society groups, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out in earlier works, such a framework will not only be socially beneficial, but will also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration.
While the development of a human rights framework for intellectual property is important, skeptics have warned about the danger of an "arranged marriage" between intellectual property and human rights. Although their concerns are understandable, it may be too late to deny the protection of human rights-based interests in intellectual creations. The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and many other international and regional instruments have all explicitly recognized the right to the protection of interests resulting from intellectual production as a human right.
This chapter does not seek to reopen this debate, which has been widely explored and documented elsewhere. Rather, it examines three challenges that may confront the development of this framework, especially from a pro-development perspective: (1) the "human rights ratchet" of intellectual property protection; (2) the undesirable capture of the human rights forum by intellectual property rights holders; and (3) the framework’s potential bias against non-Western cultures and traditional communities.
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