Intellectual Property, Human Rights and Methodological Reflections
APPROACHES AND METHODOLOGIES IN INTELLECTUAL PROPERTY RESEARCH, Irene Calboli and Lillà Montagnani, eds., Oxford University Press, 2019, Forthcoming
14 Pages Posted: 11 Sep 2018
Date Written: September 10, 2018
Since the mid-2000s, scholars have paid considerable attention to the interface between intellectual property and human rights. Today, one can easily find books and law review articles on the subject. Initially, most of these discussions focused on topics such as access to essential medicines, access to knowledge, and the protection of traditional knowledge and traditional cultural expressions. In recent years, however, the literature has been expanded to cover new or underexplored areas, such as Internet-related human rights, the right to science and culture, and the use of human rights impact assessments in the intellectual property area.
Although scholarship on intellectual property and human rights has been growing rapidly, commentators have not devoted much explicit discussion to the different methods used to conduct research in this area. A greater methodological focus is particularly timely in light of the literature that has now slowly emerged to examine research methods in the human rights area. Such a focus will help refine existing human rights approaches to intellectual property while devising new ones to advance the promotion and protection of human rights in the intellectual property area.
This chapter reflects on the methodological choices that the author has made in prior works on intellectual property and human rights. Specifically, the chapter discusses three methodological choices: (1) the choice between a positivist conception of human rights and a philosophical conception of those rights; (2) the choice between historical and evolutive interpretations; and (3) the choice of developing a layered hierarchical structure to analyze the myriad human rights interests involved and the interplay of these interests.
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