A Human Right to Intellectual Property?

The merger between trade and intellectual property, referred to as “strange bedfellows” in the 1990’s, has become the norm as a result of the WTO Agreement on Trade-related Intellectual Property Rights, and subsequent agreements. Intellectual property and human rights may seem like strange bedfellows as well. However, there is a greater connection between these two areas of law than one might imagine.

Article 27(2) of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The International Covenant on Economic, Social, and Cultural Rights contains similar language. A number of scholars have considered the relationship between human rights instruments and intellectual property rights (i.e. Helfer, Yu, Shaver, Land, Chapman, Carpenter, and others). Some (Chapman, for instance) have suggested that this UDHR provision provides a basis for a human right to copyright or patent protection.

Writing on corporations and the possible human right to intellectual property, I found myself reluctant to accept the notion of a right to intellectual property as a human right. I like the idea of considering the impact of intellectual property rights on human rights, as has been done in the access to medicines debate, for instance. However, I am generally uncomfortable with the notion of a human right to intellectual property. Equating the UDHR human right to a right to copyright or patent protection raises a number of issues, and I doubt that it is ultimately a good idea. However, I am willing to be convinced otherwise.