Intellectual Property And Transformative Constitutionalism

Abstract

This chapter examines the tensions between intellectual property protection, on the one hand, and economic, social, and cultural rights, on the other. From that perspective, the text is based on the concrete legislative implementation of those constitutional goals, as well as the relevant jurisprudence, including decisions taken at the supranational level according to international treaties on human rights. It also discusses the effect of the strengthening of intellectual property rules through free trade or investment agreements and how this affected the fulfilment of constitutional objectives. Finally, it introduces how national courts have interpreted intellectual property rules concerning constitutionally guaranteed social rights as well as some policy options to deal with those tensions and avoid adverse impacts of intellectual property regimes in Latin American countries.

Keywords: Intellectual Property, IP, ICCAL, transformative constitutional- ism, human rights, traditional knowledge, FTA, BIT