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Tuesday, April 21, 2015

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. 

Posted by Jan OseiTutu on April 21, 2015 at 01:16 PM in Corporate, Culture, Intellectual Property, International Law | Permalink


Thanks, Lea! I appreciate the feedback and I will read the report with interest.

Posted by: Jan | Apr 22, 2015 11:34:04 PM

A very recent development in this area bears noting: a new UN report on "Copyright Policy and the Right to Science and Culture," which you can read about here: http://leashaver.net/2015/03/18/copyright-and-human-rights/

I served as the Special Rapporteur's consultant in developing this report, and was present at all the meetings and discussions. The question of whether corporations could claim a human rights basis for copyright protection was very much in the front of our minds.

Of course, from the standpoint of human rights doctrine, this has a very simple and clear answer: only human beings are bearers of human rights. Yet you are quite right that this simple point has not prevented corporations from asserting claims under human rights principles. Indeed, when the Special Rapporteur presented the report to States in March, she was specifically criticized by the US representative for insisting that corporations are outside the scope of the right. This shouldn't be controversial, however.

I think the more important innovation we made in that report was to clarify more clearly the content of the right, in a way that will ultimately discourage corporations from misusing it for their own ends. Rather than "a right to intellectual property," that report framed the human right as "the right to protection of authorship" and explored the meaning of this right.

In short, the report suggests that copyright laws and policies must be evaluated according to how well they actually serve human authors and encourage authorship, which is not the same as how well they serve corporate rights holders. (Of course, the report acknowledges that what is good for rights holders may be good for authors as well, but it emphatically declines to assume that this is always the case. For this, it was criticized as "unbalanced.")

The question will surface again as the Special Rapporteur prepares her report on Patent Policy and the Right to Science and Culture. So this article is timely and I look forward to engaging with it!

Posted by: Lea Shaver | Apr 21, 2015 2:40:16 PM

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