The Anatomy of the Human Rights Framework for Intellectual Property

Abstract

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions.

Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, intellectual property and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores the proper place of intellectual property rights — in particular, patent rights — in the human rights framework for intellectual property. To help facilitate a systematic and holistic study of this framework, the present article advances a layered approach to intellectual property and human rights and identifies the framework's organizing principles and structural layers.

This article further illustrates the proposed layered framework with examples involving four different types of scientific productions: (1) scientific publications; (2) scientific innovations (including inventions); (3) scientific knowledge; and (4) indigenous knowledge, innovations and practices. The article concludes by exploring whether an alternative human rights basis can be found in the right to own private property — a recurring debate among policymakers, commentators and intellectual property industries as well as one that has found support in recent human rights developments in Europe.