Patents and Human Rights: Where is the Paradox?

20 Pages Posted: 13 Sep 2006

Abstract

There is an emerging trend, particularly in international circles, to bemoan the human rights paradox in intellectual property. Thus, it is said that intellectual property rights are grounded in fundamental concepts of human dignity and just deserts. At the same time, however, it is recognized that intellectual property rights protect information, a nonrivalrous good. The paradox is said to arise when one human right is pitted against another, when intellectual property rights are used to restrict access to information that could - at no real cost to the developer - be deployed in ways that satisfy fundamental human needs. It is not difficult to understand why this concern is developing. Along with several other international instruments, the Universal Declaration of Human Rights articulates a commitment to protect the rights of creators; these same instruments also recognize rights that require access to the fruits of creativity. As these commitments become enforceable in courts of law, the stage is set for a clash between the right to control information and the right to use it for such purposes as attaining health and education, participating in cultural activities, engaging in expressive conduct, or freely pursuing intellectual inquiry.

The thesis of this paper is that the equation of intellectual property rights generally - and patent rights in particular - to human rights is belied by the historical evolution of these rights and negated structurally, by the manner in which claims to intellectual products are recognized in law. The characterization of patent rights as human rights is not only wrong, it also has unfortunate pragmatic consequences: it is harder to make a case for intruding on patent prerogatives when they are characterized as human rights than when they are justified on utilitarian grounds. Moreover, the ad hoc balancing required can lead to unpredictable decision-making and an environment less conducive to investing time and money in intellectual efforts. This paper examines the evidence undermining the equation of patent rights and human rights. It then sets out distinctions that the human rights rhetoric tends to ignore - differences between intellectual efforts protected by copyrights and patents; between safeguarding creative individuals from involuntary servitude and giving them control over the information that their labor produces; and between holding a patent and holding the expectation of acquiring a patent. The paper ends with examples of how a utilitarian justification for patent rights is better suited to the task of furthering social welfare.

Keywords: intellectual property, patents, human rights, public goods, utilitarian justifications

JEL Classification: H40, I10, I31, K33, K39, O34

Suggested Citation

Dreyfuss, Rochelle Cooper, Patents and Human Rights: Where is the Paradox?. Molengrafica Series, Forthcoming; New York University, Law and Economics Research Paper No. 06-38; New York University Law School, Public Law Research Paper No. 06-29. Available at SSRN: https://ssrn.com/abstract=929498

Rochelle Cooper Dreyfuss (Contact Author)

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6258 (Phone)
212-995-4760 (Fax)

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