Does Intellectual Property Need Human Rights?

Abstract

The impassioned contest over the nature, scope, and implications of the intellectual property and human rights interface has important consequences for the way nations understand and comply with their obligations in each field. It significantly affects the methods and substance of international assistance offered to developing countries by international organizations, non-governmental organizations, and the extensive network of private experts deployed to facilitate competing outcomes in domestic legislation. The result has been a highly politicized environment for intellectual property norm-setting at all levels of global, regional, and national governance, resulting in a persistent state of norm conflict that weighs heavily on the already complex relations among domestic and international actors involved with intellectual property policymaking.

This article provides a critical review of the contemporary construction of the intellectual property/human rights interface. On the whole, it advances a view of the human rights frame as problematic for the liberty aspirations and development interests of populations in the global South. Human rights law – both in its ideological orientation towards western liberal political traditions and in its pragmatic reliance on external constituencies for expertise and guidance - tends to stymie the necessary national debate that is a precursor for the cultivation of sophisticated local actors who can more ably challenge the structural challenges imposed by international intellectual property norms. In addition, the international human rights norm-setting process is heavily influenced by justifications for intellectual property. These design features of the relevant human rights institutions create significant challenges for the promise of a redemptive effect of human rights arguments on local intellectual property reform initiatives.