Academia.edu no longer supports Internet Explorer.
To browse Academia.edu and the wider internet faster and more securely, please take a few seconds to upgrade your browser.
willem grosheideRelated papers
Intellectual Property: The Promise and Risk of Human Rights
Abstract (en): The intersection of intellectual property and human rights is a relatively new site in the search for balance in intellectual property law and policy. Although this intersection opens up intellectual property to a unique kind of interdisciplinary analysis, only the human rights system appears to have seized the opportunity, while its intellectual property rights counterpart remains reluctant to engage. There are, so far, different competing first impressions over the nature of the intersection between intellectual property and human rights. Despite empirical credence of the conflict narrative, the coexistence or complementary thesis of the intellectual property and human rights interface has greater prospects for a meaningful and balanced rapprochement between the two. This chapter argues for a critical scrutiny of the human rights appeal of intellectual property rights in order to avoid its potential for being hijacked by stronger stakeholders at the expense of their weaker opponents for whom intellectual property rights have strong paradoxical ramifications.
Interrelationship between Human rights and Intellectual Property Rights
2020
Human rights and intellectual property, two forms of law that were once enemies, are gradually becoming familiar bedfellows. The two subjects have been working together in virtual isolation for decades. However, in recent years , international norm-setting efforts have begun to map previously unexplored ties between, on the one hand, intellectual property law and human rights. Two regimes have grown rapidly: human rights and intellectual property rights. On one hand,, the rise of major multinational companies has led to a greater and tighter framework for the protection of intellectual property. Human rights, have acquired primacy in both cultural and legislative debates on the other hand. Developing countries have suggested that intellectual property rights as well as human rights frequently clash, particularly in the enforcement of their international TRIPS obligations. Nevertheless, developed nations are being pushed to provide greater security to intellectual property. The voice...
Intellectual Property and Human Rights: A Conceptual Analysis in the Light of Developing Countries
Kathmandu School of Law Review, 2013
This paper examines some competing legal frameworks that governments, NGOs, and intergovernmental organizations are using to conceptualize the intersection of human rights and intellectual property. Among the two approaches examined, the first approach views the two areas of law as in fundamental conflict, with strong intellectual property protection standards in particular those of the TRIPS Agreement undermining a broad spectrum of human rights. The second approach sees both areas of law as concerned with the same basic question .This paper aims to critically analyze different provisions of the intellectual property and to search for the implications of them for the developing countries in line with the Human right. Finally an attempt is made to explore ways and means in mitigating or addressing the problems arising out of the TRIPS which are peculiar to the developing countries.
Intellectual Property and Human Rights: A Taxonomy of Their Interactions
IIC - International Review of Intellectual Property and Competition Law, 2020
Intellectual Property Rights and Human Rights
Abstract “The relationship between Intellectual Property rights and Human rights has debated greatly . In this aspect two opposing views have been proposed . The first view maintains that Intellectual property law and human rights law are in fundamental conflict since the legal protection of individually held Intellectually property rights is considered to be incompatible with communally based human rights . In other words according to this view human rights are perceived as a countervailing force against intellectual Property rights. The second view holds that intellectual property rights law and human rights law are compatible since they pursue the same aim . In other words ,human rights law is seen as the fundamental of intellectual property law.”(Reference—Edward Elgard,C Intellectual Property and Human rights a paradox, Centre for Intellectual Property law edited by William Groeshide), My paper focuses on the relation between Intellectual Property rights and Human Rights . The paper focuses on the importance on the evaluation of Intellectual Property rights ,significance of the Paris and Berne Convention , Relevance of The Status of Anne Act 1710, TRIPS Agreement .The paper also focuses on the Relationship between Intellectual Property rights and traditional knowledge, relationship between Intellectual Property rights and the rights to health , relationship between Intellectual Property rights and the right to food ,relationship between Intellectual Property rights and Patent law and comparison and contract between Intellectual property rights and human rights.
An assessment of prominent proposals to amend intellectual property regimes using a human rights framework (2014)
A wide range of proposals to alleviate the negative effects of intellectual property regimes is currently under discussion. This article offers a critical evaluation of six of these proposals: the Health Impact Fund, the Access to Knowledge movement, prize systems, open innovation models, compulsory licenses and South-South collaborations. An assessment on how these proposals target the human rights affected by intellectual property will be provided. The conflicting human rights that will be individually discussed are the rights: to benefit from one’s own scientific work, to benefit from the advancement of science, to participate in scientific enterprises and to self-determination.
Intellectual Property Quarterly 1999 Case Comment INTELLECTUAL PROPERTY AND HUMAN RIGHTS
Relationship between human rights, right of property and IP rights, conflict with other rights, whether IP rights are now human rights given their universal recognition and need for IP specialists to participate in human rights debates.
Corporate "Human Rights" to Intellectual Property?
Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major driving force behind increased global intellectual property standards, a human rights framework for intellectual property must contemplate the likelihood that corporations will attempt to co-opt a human rights model in order to bolster their intellectual property claims. Moreover, framing intellectual property interests from a human rights perspective can affect our conceptions of intellectual property and our analysis of the relationship between intellectual property rights and other interests. This Article contends that there is value in using human rights law to limit excessive intellectual property protection. However, promoting a human right to intellectual property protection could have the unfortunate effect of further entrenching rights that have already increased significantly in recent years.
Texas A&M University School of Law
Texas A&M Law Scholarship
Faculty Scholarship
2019
Intellectual Property and Human Rights 2.0
Peter K. Yu
Texas A&M University School of Law, peter_yu@msn.com
Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar
Part of the Intellectual Property Law Commons
Recommended Citation
Peter K. Yu, Intellectual Property and Human Rights 2.0, 53 U. Rich. L. Rev. 1375 (2019).
Available at: https://scholarship.law.tamu.edu/facscholar/1341
This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for
inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information,
please contact aretteen@law.tamu.edu.
*
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
Peter K Yu
ABSTRACT
Written in celebrationof the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greatermethodological engagement
to refine existing human rights approachesto intellectual property and to devise new approachesto advance the promotion and protection of human rights
in the intellectualproperty area. This article begins by briefly recapturingthe
past two decades of scholarship on intellectualproperty and human rights. It
documents the progressscholars have made in this intersectionalarea. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take the academic discourse to the
next level. It highlights three dominant research methods that have been used
in this intersectional area: comparative methods, quantitative assessments,
and contextual analyses. The second half of this article identifies the contributions a robust discourse on intellectualproperty and human rights can make
to the future development of the intellectualproperty regime, the human rights
regime, and the interface between these two regimes. Responding to critics and
skeptics in the intellectual property field, the article concludes by explaining
why human rights discussions in the intellectual property area will provide
important benefits to the future development of the intellectualproperty regime,
especially in relation to developing countries.
* Copyright C 2019 Peter K. Yu. Professor of Law, Professor of Communication, and
Director, Center for Law and Intellectual Property, Texas A&M University. This article
benefited from discussions with the participants of a number of events at which the author
explored issues at the intersection of intellectual property and human rights, including the
Annual Meeting of the Norwegian Copyright Society in Oslo, Norway, the Third Business
and Human Rights Scholars Conference at Santa Clara University School of Law, the
"Global Genes, Local Concerns" Symposium at the University of Copenhagen in Denmark,
a workshop organized by the International Centre for Trade and Sustainable Development
in Geneva, Switzerland, the 4th International Intellectual Property Scholars Roundtable at
Duke University Law School, the International Law Weekend 2014 at Fordham University
School of Law, the Workshop on "Patent Regimes and the Right to Science and Culture" at
Yale Law School, and the "Intellectual Property and Human Rights" Conference at American University Washington College of Law. The author is grateful to the participants of
these events for their valuable comments and suggestions.
1375
[Vol. 53:1375
UNIVERSITY OF RICHMOND LAW REVIEW
1376
TABLE OF CONTENTS
........... 1383
I. INTELLECTUAL PROPERTY AND HUMAN RIGHTS SCHOLARSHIP ....
II. HUMAN RIGHTS METHODS AND METHODOLOGY
A. ComparativeMethods
B. QuantitativeAssessments
........................
...... 1401
...........................
...... 1406
......................................
III. WHY STUDY INTELLECTUAL PROPERTY AND HUMAN RIGHTS?
.. . .. .. .
. . .. . .
.....
1432
...............................
1438
........................
C. Interface Between the Two Regimes
1424
....... 1424
...............................
B. Human Rights.............
1416
1421
................................................
A. Intellectual Property.
1399
..............................
C. Contextual Analyses
D. Summary
1377
...........................................................
INTRODUCTION
IV. RESPONSES TO SKEPTICS AND CRITICS ......................
............ 1440
A. Distractionsfrom Internal Improvements
.................... 1441
B. Lack of Benefits to Developing Countries ................
CONCLUSION
............................................................
...... 1448
1452
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1377
INTRODUCTION
On December 10, 2018, the Universal Declaration of Human
Rights' ("UDHR") reached its seventieth anniversary. To celebrate
this historic milestone, the Office of the United Nations High Commissioner for Human Rights ("OHCHR") announced a yearlong series of activities, drawing attention from international organizations, educational institutions, academic commentators, human
rights activists, and the public at large. 2 While most discussions of
the UDHR have focused on conventional human rights-such as
the prohibition on genocide, slavery, and torture; the rights to freedom of thought, expression, association, and religion; and the
rights to life, food, health, basic education, and work-a growing
volume of scholarship examines issues lying at the intersection of
intellectual property and human rights.3
Article 27(2) of the UDHR states that "[e]veryone has the right
to the protection of the moral and material interests resulting from
any scientific, literary or artistic production of which he [or she] is
the author." 4 Although this right has existed for close to seven decades, it did not receive much attention until policymakers and
scholars rediscovered the provision about two decades ago. 5 This
rediscovery, or at least rejuvenated emphasis, can be partly attributed to the "Intellectual Property and Human Rights" panel
that the World Intellectual Property Organization ("WIPO") organized with the OHCHR in November 1998 to commemorate the fiftieth anniversary of the UDHR. 6 Shortly after this panel, the
United Nations Sub-Commission on the Promotion and Protection
of Human Rights ("U.N. Sub-Commission") adopted two resolutions on intellectual property and human rights.7
1. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR].
2. See Press Release, Office of the United Nations High Comm'r for Human Rights,
New Website Celebrates 70th Anniversary of the Universal Declaration of Human Rights
(Nov. 30, 2017), https://www.ohchr.org/EN/NewsEvents/Pages/UDHR70.aspx [https://per
ma.cclW7AU-3XQN].
3. See infra note 20 (collecting book-length treatments in this area).
4. UDHR, supra note 1, art. 27(2).
5. See infra Part I.
6. See WORLD INTELLECTUAL PROP. ORG. [WIPO], INTELLECTUAL PROPERTY AND
HUMAN RIGHTS (1999) (providing the proceedings of the "Intellectual Property and Human
Rights" panel).
7. Sub-Commission on Human Rights Res. 2001/21, U.N. Doc. E/CN.4/SUB.2/
-
1378
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
A few years later, the Committee on Economic, Social and Cul8
tural Rights ("CESCR") provided two interpretative comments on
Article 15(1) of the International Covenant on Economic, Social
and Cultural Rights ("ICESCR").9 While Article 15(1)(a) covers the
right to take part in cultural life,1 0 Article 15(1)(c) focuses on the
right to the protection of the moral and material interests resulting
from intellectual production." Both provisions find close parallels
in Article 27 of the UDHR.12
The only part of Article 15(1) of the UDHR that has not yet received much authoritative interpretation and scholarly attention
is Article 15(1)(b), which deals with "the right of everyone .
.
. [t]o
3
enjoy the benefits of scientific progress and its applications."1 Article 27(1) of the UDHR also recognizes "the right freely. .. to
share in scientific advancement and its benefits."' 4 Even this socalled "right to science"-a right that has been described as being
"[t]ucked away at the tail end" of the UDHR and the ICESCR 1 5
has now caught the attention of the United Nations Educational,
RES/2001/21 (Aug. 16, 2001) [hereinafter Res. 2001/21]; Sub-Commission on Human Rights
Res. 2000/7, U.N. Doc. E/CN.4/Sub.2/RES/2000/7 (Aug. 17, 2000) [hereinafter Res. 2000/7].
8. Comm. on Econ., Soc. & Cultural Rights, General Comment No. 17: The Right of
Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from
Any Scientific, Literary or Artistic Production of Which He or She Is the Author (Article 15,
Paragraph 1(c), of the Covenant), U.N. Doc. E/C.12/GC/17 (Jan. 12, 2006) [hereinafter General Comment No. 17]; Comm. on Econ., Soc. & Cultural Rights, General Comment No. 21:
Right of Everyone to Take Part in Cultural Life (Art. 15, Para. 1(a), of the International
Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/GC/21 (Dec. 21, 2009)
[hereinafter General Comment No. 21].
9. International Covenant on Economic, Social and Cultural Rights art. 15(1), Dec. 16,
1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
10. Id. art. 15(1)(a).
11. Id. art. 15(1)(c).
12. Compare id. art. 15(1)(a) (recognizing the right to "take part in cultural life") and
id. art. 15(1)(c) (recognizing the right to "benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she]
is the author"), with UDHR, supra note 1, art. 27(1)-(2) (recognizing "the right freely to
participate in the cultural life of the community, to enjoy the arts," and "to the protection of
the moral and material interests resulting from any scientific, literary or artistic production
of which he [or she] is the author").
13. ICESCR, supra note 9, art. 15(1)(b).
14. UDHR, supra note 1, art. 27(1).
15. William A. Schabas, Study of the Right to Enjoy the Benefits of Scientific and Technological Progress and Its Applications, in HUMAN RIGHTS IN EDUCATION, SCIENCE AND
CULTURE: LEGAL DEVELOPMENTS AND CHALLENGES 273, 273 (Yvonne Donders & Vladimir
Volodin eds., 2007) [hereinafter HUMAN RIGHTS IN EDUCATION].
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1379
Scientific and Cultural Organization ("UNESCO")16 and the Special Rapporteur in the Field of Cultural Rights.1 7
In the past two decades, academic commentators have also paid
considerable attention to both the strengths and weaknesses of developing a human rights framework for intellectual property law
and policy.1 8 A significant volume of literature has now appeared
in the area of intellectual property and human rights. For instance,
Laurence Helfer and Graeme Austin published a pioneering textbook entitled Human Rights and Intellectual Property: Mapping
the Global Interface.19 Paul Torremans, Jonathan Griffiths and
Uma Suthersanen, Willem Grosheide, and Christophe Geiger also
edited important volumes in this hitherto unpopulated area. 20
16. See U.N. EDUC., ScI. & CULTURAL ORG. [UNESCO], THE RIGHT TO ENJOY THE
BENEFITS OF SCIENTIFIC PROGRESS AND ITS APPLICATIONS 3 (2009), https://unesdoc.unesco.
org/ark:/48223/pf0000185558 [https://perma.cclYST9-SUUIM] (noting the expert meetings
UNESCO organized in Galway, Amsterdam, and Venice in collaboration with human rights
and international law organizations).
17. In chronological order, the Special Rapporteur in the Field of Cultural Rights issued
the following reports: Farida Shaheed (Special Rapporteur in the Field of Cultural Rights),
The Right to Enjoy the Benefits of Scientific Progress and Its Applications, Human Rights
Council, U.N. Doc. A/HRC/20/26 (May 14, 2012) [hereinafter Special Rapporteur'sReport on
the Right to Science]; Farida Shaheed (Special Rapporteur in the Field of Cultural Rights),
Copyright Policy and the Right to Science and Culture, Human Rights Council, U.N. Doc.
A/HRC/28/57 (Dec. 24, 2014) [hereinafter Special Rapporteur'sReport on Copyright Policy];
Farida Shaheed (Special Rapporteur in the Field of Cultural Rights), Cultural Rights,
United Nations General Assembly, U.N. Doc. A/70/279 (Aug. 4, 2015) [hereinafter Special
Rapporteur'sReport on Patent Policy].
18. For discussions of this framework, see Laurence R. Helfer, Toward a Human Rights
Framework for Intellectual Property, 40 U.C. DAVIS L. REV. 971 (2007) [hereinafter Helfer,
Human Rights Framework]; Peter K Yu, Reconceptualizing Intellectual Property Interests
in a Human Rights Framework, 40 U.C. DAVIS L. REV. 1039 (2007) [hereinafter Yu, ReconceptualizingIntellectualPropertyInterests];Peter K. Yu, The Anatomy of the Human Rights
Framework for Intellectual Property, 69 SMU L. REV. 37 (2016) [hereinafter Yu, Anatomy].
19. LAURENCE R. HELFER & GRAEME W. AUSTIN, HUMAN RIGHTS AND INTELLECTUAL
PROPERTY: MAPPING THE GLOBAL INTERFACE (2011).
20. These volumes included COPYRIGHT AND FREE SPEECH: COMPARATIVE AND
INTERNATIONAL ANALYSES (Jonathan Griffiths & Uma Suthersanen eds., 2005) [hereinafter
COPYRIGHT AND FREE SPEECH]; INTELLECTUAL PROPERTY AND HUMAN RIGHTS: A PARADOX
(Willem Grosheide ed., 2010) [hereinafter A PARADOX]; INTELLECTUAL PROPERTY LAW AND
HUMAN RIGHTS (Paul L.C. Torremans ed., 3d ed. 2015) [hereinafter INTELLECTUAL
PROPERTY LAw AND HUMAN RIGHTS]; RESEARCH HANDBOOK ON HUMAN RIGHTS AND
INTELLECTUAL
HANDBOOK].
PROPERTY
(Christophe
Geiger
ed.,
2015)
[hereinafter
RESEARCH
&
1380
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
In addition, scholarship has slowly emerged to cover issues that
lend themselves to human rights analyses, such as access to essen22
tial medicines, 21 access to knowledge and educational materials,
and the protection of traditional knowledge and traditional cultural expressions. 23 Recent scholarship has also gone beyond these
well-studied areas to cover new topics, such as Internet-related human rights, 24 the right to science and culture, 25 the use of human
21.
For discussions of the interplay of human rights and access to medicines, see
AUDREY R. CHAPMAN, GLOBAL HEALTH, HUMAN RIGHTS, AND THE CHALLENGE OF
NEOLIBERAL POLICIES (2016); ANGELINA SNODGRASS GODOY, OF MEDICINES AND MARKETS:
INTELLECTUAL PROPERTY AND HUMAN RIGHTS IN THE FREE TRADE ERA (2013); HELFER
AUSTIN, supra note 19, at 90-170; HOLGER HESTERMEYER, HUMAN RIGHTS AND THE WTO:
THE CASE OF PATENTS AND ACCESS TO MEDICINES (2007); LEE JOO-YOUNG, A HUMAN
RIGHTS FRAMEWORK FOR INTELLECTUAL PROPERTY, INNOVATION AND ACCESS TO MEDICINES
(2015).
22. For discussions of the interplay of human rights and access to knowledge and educational materials, see HELFER & AUSTIN, supra note 19, at 316-63; HUMAN RIGHTS IN
EDUCATION, supranote 15. For an excellent collection on the access to knowledge movement,
see ACCESS TO KNOWLEDGE IN THE AGE OF INTELLECTUAL PROPERTY (Gaelle Krikorian
Amy Kapczynski eds., 2010).
23. For discussions of the interplay of human rights and access to knowledge and educational materials, see Sue Farran, Human Rights Perspective on Protection of Traditional
Knowledge and Intellectual Property:A View from Island States in the Pacific, in RESEARCH
HANDBOOK, supra note 20, at 641; Susy Frankel, Using Intellectual Property Rules to Support the Self-Determination Goals of Indigenous Peoples, in RESEARCH HANDBOOK, supra
note 20, at 627; HELFER & AUSTIN, supra note 19, at 316-63; MARCELIN TONYE MAHOP,
INTELLECTUAL PROPERTY, COMMUNITY RIGHTS AND HUMAN RIGHTS: THE BIOLOGICAL AND
GENETIC RESOURCES OF DEVELOPING COUNTRIES (2010); Rosemary J. Coombe, Intellectual
Property, Human Rights & Sovereignty: New Dilemmas in InternationalLaw Posed by the
Recognition of Indigenous Knowledge and the Conservation of Biodiversity, 6 IND. J. GLOBAL
LEGAL STUD. 59 (1998) [hereinafter Coombe, Intellectual Property]; Rosemary J. Coombe,
The Recognition of Indigenous Peoples'and Community TraditionalKnowledge in International Law, 14 ST. THOMAS L. REV. 275 (2001); Peter K. Yu, Intellectual Property and Human Rights in the NonmultilateralEra, 64 FLA. L. REV. 1045, 1075-82 (2012) [hereinafter
Yu, NonmultilateralEra]; Yu, Anatomy, supranote 18, at 81-84.
24. For discussions of these issues, see SUSAN PERRY & CLAUDIA RODA, HUMAN RIGHTS
AND DIGITAL TECHNOLOGY: DIGITAL TIGHTROPE (2017); RESEARCH HANDBOOK ON HUMAN
RIGHTS AND DIGITAL TECHNOLOGY: GLOBAL POLITICS, LAW AND INTERNATIONAL RELATIONS
(Ben Wagner et al. eds., 2019) [hereinafter RESEARCH HANDBOOK ON DIGITAL
TECHNOLOGY]; Peter K. Yu, Digital Copyright Enforcement Measures and Their Human
Rights Threats, in RESEARCH HANDBOOK, supra note 20, at 455 [hereinafter Yu, Digital
Copyright Enforcement Measures]; Molly Beutz Land, ProtectingRights Online, 34 YALE J.
INT'L L. 1 (2009); Molly Land, Toward an InternationalLaw of the Internet, 54 HARV. INT'L
L.J. 393 (2013) [hereinafter Land, Toward an InternationalLaw].
25. For discussions of this right, see HUMAN RIGHTS IN EDUCATION, supra note 15;
INTELLECTUAL PROPERTY AND ACCESS TO SCIENCE AND CULTURE: CONVERGENCE OR
CONFLICT? GLOBAL PERSPECTIVES AND CHALLENGES FOR THE INTELLECTUAL PROPERTY
SYSTEM (Christophe Geiger ed., 2016); AURORA PLOMER, PATENTS, HUMAN RIGHTS AND
ACCESS TO SCIENCE (2015); ELSA STAMATOPOULOU, CULTURAL RIGHTS IN INTERNATIONAL
LAW: ARTICLE 27 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND BEYOND (2007);
UNESCO, supra note 16; MARGARET WEIGERS VITULLO & JESSICA WYNDHAM, AM. AsS'N
&
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1381
rights impact assessments in the intellectual property area, 26 the
human rights challenges posed by bilateral, regional, and plurilateral trade agreements, 27 and, most recently, human rights issues
implicated by artificial intelligence. 28
In short, the time is ripe for us to take stock of the past two decades of scholarship on intellectual property and human rights and
to closely analyze the progress scholars have made in this intersectional area. It will also be worthwhile to explore ways to upgrade
the debate on intellectual property and human rights and to fully
engage with the burgeoning literature on human rights research
methods and methodology. 29 After all, despite the ever-growing
scholarly literature on intellectual property and human rights,
commentators have not devoted much space to articulating the different methods used to conduct research in this area. This article
therefore calls for greater methodological engagement to refine ex-
FOR THE ADVANCEMENT OF SCI., DEFINING THE RIGHT TO ENJOY THE BENEFITS OF
SCIENTIFIC PROGRESS AND ITS APPLICATIONS: AMERICAN SCIENTISTS' PERSPECTIVES (2013),
https://www.aaas.org/sites/default/files/content-filesfUNReportAAAS.pdf [https://perma.cc
/TNL7-EM48]; Lea Shaver, The Right to Science and Culture, 2010 WIS. L. REV. 121; Lea
Shaver & Caterina Sganga, The Right to Take Partin CulturalLife: On Copyright and Human Rights, 27 WIS. INT'L L.J. 637 (2009); Yu, Anatomy, supra note 18.
26. For discussions of these assessments, see Carlos M. Correa, Mitigating the Impact
of Intellectual Property in Developing Countries Through the Implementation of Human
Rights, in RESEARCH HANDBOOK, supra note 20, at 201, 208-11; JAMES HARRISON, THE
HUMAN RIGHTS IMPACT OF THE WORLD TRADE ORGANISATION 226-34 (2007); TODD
LANDMAN, STUDYING HUMAN RIGHTS 126-39 (2006); SIMON WALKER, THE FUTURE OF
HUMAN RIGHTS IMPACT ASSESSMENTS OF TRADE AGREEMENTS 123-86 (2009); Lisa Forman
& Gillian MacNaughton, Moving Theory into Practice: Human Rights Impact Assessments
of Intellectual PropertyRights in Trade Agreements, 7 J. HUM. RTS. PRAC. 109 (2015); Yu,
NonmultilateralEra, supra note 23, at 1096-98.
27. For discussions of this impact, see WALKER, supra note 26; Yu, NonmultilateralEra,
supra note 23, at 1087-91.
28. See, e.g., FILIPPO RASO ET AL., BERKMAN KLEIN CTR. FOR INTERNET & SoC'Y,
HARVARD UNIV., ARTIFICIAL INTELLIGENCE & HUMAN RIGHTS: OPPORTUNITIES & RISKS
(2018), https://cyber.harvard.edulsites/default/files/2018-09/2018-09_AlHumanRightsSma
ll.pdf [https://perma.cc/NCB5-SP25] (evaluating the human rights impacts of six current
uses of artificial intelligence).
29. For this body of scholarship, see LANDMAN, supra note 26; TODD LANDMAN & EDZIA
CARVALHO, MEASURING HUMAN RIGHTS (2010); METHODS OF HUMAN RIGHTS RESEARCH
(Fons Coomans et al. eds., 2009); RESEARCH METHODS IN HUMAN RIGHTS (Lee McConnell
Rhona Smith eds., 2018); RESEARCH METHODS IN HUMAN RIGHTS: A HANDBOOK (Ba'rd A.
Andreassen et al. eds., 2017) [hereinafter RESEARCH METHODS HANDBOOK]. A much earlier
work that fits well in this category is HUMAN RIGHTS AND STATISTICS: GEING THE RECORD
STRAIGHT (Thomas B. Jabine & Richard P. Claude eds., 1992) [hereinafter HUMAN RIGHTS
AND STATISTICS].
1382
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
isting human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of
human rights in the intellectual property area.30
Part I of this article briefly recaptures the past two decades of
scholarship on intellectual property and human rights. This part
not only examines the scholarship's evolution and maturation, but
also identifies key developments that have enriched scholarship in
this area. Part II recognizes that a large part of this past scholarship has focused on drafting history, doctrinal interpretation, and
philosophical exploration. This part therefore draws on the latest
research on human rights methods and methodology 31 to explore
whether and how we can take the academic discourse to the next
level. Specifically, this part highlights three dominant methods
that have been used to conduct research on intellectual property
and human rights: (1) comparative methods; (2) quantitative assessments; and (3) contextual analyses.
Part III targets the oft-raised question for human rights educators: why do we study human rights in the first place? Instead of
answering this broad question, which a growing volume of literature on human rights education has already addressed, 32 this part
narrows the inquiry's focus to the area of intellectual property and
30. For a companion piece that reflects on the different methodological choices I have
made in prior works on intellectual property and human rights, see Peter K. Yu, Intellectual
Property, Human Rights and Methodological Reflections, in APPROACHES AND
METHODOLOGIES IN INTELLECTUAL PROPERTY RESEARCH (Irene Calboli & Lilli Montagnani
eds., forthcoming 2019) [hereinafter Yu, MethodologicalReflections].
31. Bard Andreassen, Hans-Otto Sano, and Siobhin McInerney-Lankford noted the difference between "methodology" and "method":
Methodology is the generic term for choice of approach, sometimes connected
to theoretical understandings and conceptual paradigms. For instance, the
choice between an objectivist and a phenomenological understanding would
represent a methodological choice. Method, on the other hand, refers to the
specific approach selected, such as quantitative or qualitative methods along
with particular analytical tools, such as data generation and analysis. The conceptual hierarchy employed here is, therefore, (a) methodology, (b) methods
and (c) tools, where methodology occupies the stage between theoretical understanding and the specific research design.
BArd A. Andreassen et al., Human Rights Research Method, in RESEARCH METHODS
HANDBOOK, supra note 29, at 1, 1-2.
32. For discussions of human rights education, see HUMAN RIGHTS EDUCATION FOR THE
TWENTY-FIRST CENTURY (George J. Andreopoulos & Richard Pierre Claude eds., 1997)
[hereinafter HUMAN RIGHTS EDUCATION]; HUMAN RIGHTS EDUCATION: THEORY, RESEARCH,
PRAXIS (Monisha Bajaj ed., 2017).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1383
human rights. This part identifies the contributions a robust discourse in this area can make to the future development of the intellectual property regime, the human rights regime, and the interface between these two regimes. Part IV concludes by
responding to critics and skeptics in the intellectual property field,
some of whom have found human rights discussions in the intellectual property area distracting, if not unwelcome. This part explains why these discussions, if properly developed, will provide
important benefits to the future development of the intellectual
property regime, especially in relation to developing countries.
I.
INTELLECTUAL PROPERTY AND HUMAN RIGHTS SCHOLARSHIP
Although the right to the protection of the moral and material
interests resulting from intellectual production came into existence with the adoption of the UDHR in December 1948, or even
earlier, 33 this right did not receive much attention until WIPO and
the OHCHR organized a panel on November 9, 1998 to commemorate the fiftieth anniversary of the UDHR. 34 Before this panel, commentators rarely engaged in the debate on intellectual property
and human rights, 35 not to mention a debate on the right to the
33. Article 13 of the American Declaration on the Rights and Duties of Man, which
mentions both "inventions" and "literary, scientific or artistic works," predates the UDHR.
American Declaration of the Rights and Duties of Man art. 13, May 2, 1948, Hein No. KAV
7225 ("Every person ... has the right to the protection of his moral and material interests
as regards his inventions or any literary, scientific or artistic works of which he [or she] is
the author.").
34. See WI7PO, supra note 6 (providing the panel proceedings).
35. See HELFER & AUSTIN, supra note 19, at 1 ("Long ignored by both the human rights
and intellectual property communities, the relationship between these two fields has now
captured the attention of government officials, judges, activist communities, and scholars
in domestic legal systems and in international venues. . . ."); Paul L.C. Torremans, Copyright (and Other Intellectual Property Rights) as a Human Right, in INTELLECTUAL
PROPERTY LAW AND HUMAN RIGHTS, supra note 20, at 221, 222 [hereinafter Torremans,
Copyright] (noting that the intellectual property and human rights disciplines "seemed to
stand on [their] own and had very little interest in the development of the other, let alone
in the development of any interaction"); Coombe, Intellectual Property,supra note 23, at 60
("[Elconomic, social, and cultural rights have been juridically marginalized in comparison
to civil and political rights, both in terms of the institutional frameworks developed for their
implementation and in terms of their judicial interpretation."); Helfer, Human Rights
Framework, supra note 18, at 975 ("Until very recently, ... the conceptualization of these
intellectual property interests as internationally protected human rights was all but unexplored. Intellectual property has remained a normative backwater in the burgeoning postWorld War II human rights movement, neglected by international tribunals, governments,
and legal scholars while other rights emerged from the jurisprudential shadows."); Molly K.
Land, The Marrakesh Treaty as 'Bottom Up" Lawmaking: Supporting Local Human Rights
&
&
1384
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
protection of the moral and material interests resulting from intellectual production. 36 If any discussion took place at all, that discussion tended to focus on a philosophical, rather than positive, conception of human rights. 37
In retrospect, the timing of the WIPO-OHCHR panel could not
have been better. The event was held at a time when policymakers
and commentators, especially those in the developing world, were
highly critical 38 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement") of the World
Trade Organization ("WTO").39 Shortly after the panel, the U.N.
Action on IP Policies, 8 U.C. IRVINE L. REV. 513, 517 (2018) [hereinafter Land, Marrakesh
Treaty] ("Prior to the mid-1990s, there was little interaction between the intellectual property and human rights regimes."). A rare exception is Ruth L. Gana (Okediji), The Myth of
Development, The Progress of Rights: Human Rights to Intellectual Property and Development, 18 LAW & POL'Y 315, 329 (1996).
36. See Audrey R. Chapman, A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science, in WIPO, supra note 6, at 127, 129
[hereinafter Chapman, Human Rights Perspective] (characterizing article 15 of ICESCR "as
the most neglected set of provisions within an international human rights instrument whose
norms are not well developed"); Stephen A. Hansen, The Right to Take Partin CulturalLife:
Toward Defining Minimum Core ObligationsRelated to Article 15(1)(a) of the International
Covenant on Economic, Social and Cultural Rights, in CORE OBLIGATIONS: BUILDING A
FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 279, 281 (Audrey Chapman
Sage Russell eds., 2002) [hereinafter CORE OBLIGATIONS] (noting that "cultural rights seem
to be among the least understood and developed of all human rights both conceptually and
legally, even though they are components of many other human rights as well"); HELFER
AUSTIN, supra note 19, at 14 ("[T]he rights of creators and the right to enjoy the benefits of
scientific progress and its applications ... long remained normatively undeveloped even in
comparison to other social and economic rights.").
37. See infra text accompanying note 252 (discussing the distinction between the two
conceptions).
38. See, e.g., Surendra J. Patel, Can the Intellectual Property Rights System Serve the
Interests of Indigenous Knowledge?, in VALUING LocAL KNOWLEDGE: INDIGENOUS PEOPLE
AND INTELLECTUAL PROPERTY RIGHTS 305, 315-16 (Stephen B. Brush & Doreen Stabinsky
eds., 1996) (arguing that the TRIPS Agreement has made the U.S. system of copyright law
universal and harms the national interests of the less developed world); Marci A. Hamilton,
The TRIPS Agreement: Imperialistic, Outdated, and Overprotective, 29 VAND. J. TRANSNAVL
L. 613, 614 (1996) ("Far from being limited to trade relations, correcting the international
balance of trade, or lowering customs trade barriers, TRIPS attempts to remake international copyright law in the image of Western copyright law."); A. Samuel Oddi, TRIPSNatural Rights and a 'Polite Form of Economic Imperialism," 29 VAND. J. TRANSNAT'L L.
415, 415 (1996) (considering the TRIPS Agreement as a "polite form of economic imperialism"); J.H. Reichman, Intellectual Property in InternationalTrade: Opportunitiesand Risks
of a GATT Connection, 22 VAND. J. TRANSNAT'L L. 747, 813 (1989) ("Imposition of foreign
legal standards on unwilling states in the name of 'harmonization' remains today what Ladas deemed it in 1975, namely, a polite form of economic imperialism." (citing 1 STEVEN P.
LADAS, PATENTS, TRADEMARKS, AND RELATED RIGHTS: NATIONAL AND INTERNATIONAL
PROTECTION 14-15 (1975))).
39. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,
Marrakesh Agreement Establishing the World Trade Organization, Annex IC, 1869
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1385
Sub-Commission adopted two important resolutions on intellectual
property and human rights. Resolution 2000/7 declared that "the
implementation of the TRIPS Agreement d[id] not adequately reflect the fundamental nature and indivisibility of all human
rights." 40 The resolution emphasized "the primacy of human rights
obligations over economic policies and agreements." 41 Resolution
2001/21, which was issued a year later, went further to request
governments "to take international human rights obligations and
principles fully into account in international economic policy formulation" in national, regional, and international economic policy
forums. 4 2 Also relating to these resolutions was the OHCHR's
highly critical report on the TRIPS Agreement. 43
The WIPO-OHCHR panel was important for another reason.
The event was held less than two years before the establishment
of the Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore. 44 Created
under WIPO's auspices in September 2000, this intergovernmental
committee was charged with the development of an international
legal instrument, or instruments, for the effective protection of traditional cultural expressions, traditional knowledge, and genetic
resources.4 5 Such protection was urgent considering that the draft
U.N.T.S. 299 [hereinafter TRIPS Agreement].
40. Res. 2000/7, supra note 7, T 2; see also David Weissbrodt & Kell Schoff, Human
Rights Approach to Intellectual Property Protection: The Genesis and Application of SubCommission Resolution 2000/7, 5 MINN. INTELL. PROP. REV. 1 (2003) (discussing the origin,
development, and application of Resolution 2000/7).
41. Res. 2000/7, supra note 7, T 3; see also Yu, Reconceptualizing Intellectual Property
Interests, supra note 18, at 1092-93 (discussing the principle of human rights primacy).
42. Res. 2001/21, supra note 7, ¶ 3.
43. See U.N. High Commissioner for Human Rights, The Impact of the Agreement on
Trade-Related Aspects of Intellectual Property Rights on Human Rights, U.N. Doc.
E/CN.4/Sub.2/2001/13 (June 27, 2001) [hereinafter High Commissioner's Report]; see also
Yu, NonmultilateralEra, supra note 23, at 1084-86 (discussing the High Commissioner's
Report).
44. See Peter K. Yu, TraditionalKnowledge, Intellectual Property, and Indigenous Culture:An Introduction, 11 CARDOZO J. INT'L & COMP. L. 239, 239-40 (2003); see also HELFER
& AUSTIN, supra note 19, at 432 ("[Tihe increased attention given to the rights of indigenous
peoples by U.N. agencies in the 1990s was among the catalysts that encouraged international human rights bodies to address intellectual property issues." (footnote omitted)).
45. IntergovernmentalCommittee (IGC), WIPO, https://www.wipo.int/tk/enligc/ [https://
perma.cc/F997-J3N9] (last visited Apr. 1, 2019); see also Peter K. Yu, CulturalRelics, Intellectual Property, and IntangibleHeritage, 81 TEMP. L. REV. 433, 437 (2008) (discussing the
intergovernmental committee). See generally PROTECTING TRADITIONAL KNOWLEDGE: THE
wIPO INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC
RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE (Daniel F. Robinson et al. eds., 2017)
1386
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
Declaration on the Rights of Indigenous Peoples 46 had already
been released for more than six years.
The year after the WIPO-OHCHR panel, WIPO published the
panel proceedings as Publication No. 762.47 These proceedings included contributions from noted scholars in both the intellectual
property and human rights fields, such as Audrey Chapman, Peter
Drahos, and Silke von Lewinski. 48 A few years later, Chapman and
Sage Russell put together an excellent volume entitled Core Obligations:Building a Framework for Economic, Social and Cultural
Rights. 49 Although this volume covered a wide variety of economic,
social, and cultural rights, its chapters on Article 15(1) of the
ICESCR have been particularly instructive.5 0
More directly related to the intellectual property area, Paul Torremans published Copyright and Human Rights: Freedom of Ex5 1 This pioneering volpression-Intellectual Property-Privacy.
ume collected papers presented at a conference on "Rights in
Information" organized in March 2002 on behalf of the Legal Studies Group of the British Association for Canadian Studies. 52 A year
later, Jonathan Griffiths and Uma Suthersanen published Copyright and Free Speech: Comparativeand InternationalAnalyses.53
Although this edited collection covered an issue that had been
widely explored in U.S. copyright law-namely, the tensions and
(collecting articles that offer detailed analyses of the Intergovernmental Committee's effort).
46. G.A. Res. 61/295, Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007)
[hereinafter UNDRIP]; see also United Nations Declarationon the Rights of Indigenous Peoples, UNITED NATIONS, https://www.un.org/development/desalindigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html [https://perma.cclV8VL-FNSC] (last visited
Apr. 1, 2019) (providing a historical overview of the Declaration).
47. WIPO, supra note 6.
48. See Chapman, Human Rights Perspective, supra note 36, at 127; Peter Drahos, The
Universality of IntellectualPropertyRights: Origins and Development, in WIPO, supranote
6, at 13; Silke von Lewinski, Intellectual Property, Nationality, and Non-Discrimination, in
WIPO, supra note 6, at 175.
49.
CORE OBLIGATIONS, supra note 36.
50. See Audrey R. Chapman, Core Obligations Related to ICESCR Article 15(1)(c), in
CORE OBLIGATIONS, supra note 36, at 305; Richard Pierre Claude, Scientists'Rightsand the
Human Right to the Benefits of Science, in CORE OBLIGATIONS, supra note 36, at 247; Hansen, supra note 36.
51. COPYRIGHT AND HUMAN RIGHTS: FREEDOM OF EXPRESSION-INTELLECTUAL
PROPERTY-PRIVACY (Paul L.C. Torremans ed., 2004) [hereinafter COPYRIGHT AND HUMAN
RIGHTS].
52. Paul L.C. Torremans, Prefaceto COPYRIGHT AND HUMAN RIGHTS, supra note 51, at
vHi.
53. COPYRIGHT AND FREE SPEECH, supra note 20.
-
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1387
conflicts between copyright law and the First Amendment 54
many chapters explored these tensions and conflicts in human
rights terms.5 5
In fall 2003, at a time when the CESCR was busy deliberating
the interpretation of Article 15(1)(c) of the ICESCR, Professor
Helfer published a widely cited article entitled Human Rights and
Intellectual Property: Conflict or Coexistence?56 Drawing on his
presentation at the 2003 annual meeting of the Association of
American Law Schools, this article foregrounded the then-classic
debate on whether intellectual property rights conflict or coexist
with human rights.57 At the time of the publication, international
organizations, policymakers, and commentators remained deeply
divided over that particular debate. While those subscribing to the
conflict approach viewed the two sets of rights as being in fundamental conflict,5 8 those embracing the coexistence approach considered the two sets of rights essentially compatible. 5 9 As Professor
Helfer summarized:
54. See Peter K. Yu, The EscalatingCopyright Wars, 32 HOFSTRA L. REV. 907, 927 n.145
(2004) (collecting sources that discuss the relationship between copyright law and the First
Amendment to the U.S. Constitution).
55. See Kevin Garnett, The Impact of the HumanRights Act 1998 on UK Copyright Law,
in COPYRIGHT AND FREE SPEECH, supranote 20, at 171 (discussing the impact of the Human
Rights Act 1998 on British copyright law and the protection of freedom of expression); Jeremy Phillips, Databases, the Human Rights Act and EU Law, in COPYRIGHT AND FREE
SPEECH, supra note 20, at 401 (discussing sui generis database protection in relation to freedom of expression and freedom of access to information); Uma Suthersanen, Towards an
InternationalPublic Interest Rule? Human Rights and International Copyright Law, in
COPYRIGHT AND FREE SPEECH, supra note 20, at 97 (discussing the contextualization of intellectual property rights within a human rights framework).
56. Laurence R. Helfer, Human Rights and Intellectual Property: Conflict or Coexistence?, 5 MINN. INTELL. PROP. REV. 47 (2003) [hereinafter Helfer, Conflict or Coexistence?].
57. Id.
58. See, e.g., Res. 2001/21, supra note 7, pmbl., recital 11 ("[Aictual or potential conflict
exists between the implementation of the TRIPS Agreement and the realization of economic,
social and cultural rights, in particular the rights to self-determination, food, housing, work,
health and education, and in relation to transfers of technology to developing countries .... ); Res. 2000/7, supra note 7, pmbl., recital 11 ("[A]ctual or potential conflicts exist
between the implementation of the TRIPS Agreement and the realization of economic, social
and cultural rights .... ).
59. See, e.g., High Commissioner's Report, supra note 43, ¶ 11 ("The balance between
public and private interests found under [the international human rights instruments] is
one familiar to intellectual property law."); Secretariat of the World Trade Organization,
Protection of Intellectual Property Under the TRIPS Agreement, 1 9, U.N. Doc.
E/C.12/2000/18 (Nov. 27, 2000) (embracing the coexistence approach and emphasizing the
availability of built-in flexibilities in existing international trade agreements).
1388
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
The first approach views human rights and intellectual property as
being in fundamental conflict. This framing sees strong intellectual
property protection as undermining-and therefore as incompatible
with-a broad spectrum of human rights obligations, especially in the
area of economic, social, and cultural rights. The prescription that proponents of this approach advocate for resolving this conflict is to recognize the normative primacy of human rights law over intellectual
property law in areas where specific treaty obligations conflict.
The second approach to the intersection of human rights and intellectual property sees both areas of law as concerned with the same
fundamental question: defining the appropriate scope of private monopoly power that gives authors and inventors a sufficient incentive
to create and innovate, while ensuring that the consuming public has
adequate access to the fruits of their efforts. This school views human
rights law and intellectual property law as essentially compatible, although often disagreeing over where to strike the balance between incentives on the one hand and access on the other. 60
In January 2006, the CESCR finally released General Comment
No. 17, a path-breaking document providing an exegesis of the
right to the protection of the moral and material interests resulting
from intellectual production. 6 1 Because the Committee is charged
with interpreting provisions in the ICESCR, this authoritative interpretation has provided for many commentators the starting
point for analyzing the rights and obligations under Article
15(1)(c). While the length and scope of this article do not allow for
a close examination of this interpretive comment, it is worth noting
that the general comment has covered in detail the different aspects of the right to the protection of the moral and material interests resulting from intellectual production, including its scope, content, and obligations. 62
Opening General Comment No. 17 is the statement that this
63
right "derives from the inherent dignity and worth of all persons."
The comment's beginning paragraph further states that this right
contrasts with "most legal entitlements recognized in intellectual
property systems." 64 As the CESCR elaborated:
Human rights are fundamental, inalienable and universal entitlements belonging to individuals and, under certain circumstances,
60. Helfer, Conflict or Coexistence?, supra note 56, at 48-49 (footnotes omitted); see also
Torremans, Copyright, supra note 35, at 222-23 (discussing the two different approaches).
61. General Comment No. 17, supra note 8.
62. Id.
63. Id. 1 1.
64. Id.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1389
groups of individuals and communities. Human rights are fundamental as they are inherent to the human person as such, whereas intellectual property rights are first and foremost means by which States
seek to provide incentives for inventiveness and creativity, encourage
the dissemination of creative and innovative productions, as well as
the development of cultural identities, and preserve the integrity of
scientific, literary and artistic productions for the benefit of society as
a whole.
In contrast to human rights, intellectual property rights are generally of a temporary nature, and can be revoked, licensed or assigned
to someone else. While under most intellectual property systems, intellectual property rights, often with the exception of moral rights,
may be allocated, limited in time and scope, traded, amended and even
forfeited, human rights are timeless expressions of fundamental entitlements of the human person. Whereas the human right to benefit
from the protection of the moral and material interests resulting from
one's scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples,
communities, or other groups and their collective cultural heritage, as
well as their basic material interests which are necessary to enable
authors to enjoy an adequate standard of living, intellectual property
regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material
interests of the author provided for by article 15, paragraph 1(c), does
not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.
It is therefore important not to equate intellectual property rights
with the human right recognized in article 15, paragraph 1(c). 65
Immediately following the release of this interpretive comment,
academic commentators utilized it to advance the debate on intellectual property and human rights.6 6 In a symposium on "Intellectual Property and Social Justice" organized by Anupam Chander
and Madhavi Sunder and published by the U.C. Davis Law Review, 67 Professor Helfer called for the adoption of a human rights
framework for intellectual property rights.68 His article carefully
analyzed General Comment No. 1769 while offering insights into
65.
66.
Id. TT 1-3 (footnote omitted).
See, e.g., HELFER & AUSTIN, supranote 19, at 172 (describing General Comment No.
17 as "a key point of reference for analysis of the normative content of Article 15(1)(c)" of
the ICESCR).
67. See Anupam Chander & Madhavi Sunder, Is Nozick Kicking Rawls's Ass-Intellectual Property and Social Justice, 40 U.C. DAVIS L. REV. 563 (2007) (providing an introduction to this symposium).
68. Helfer, Human Rights Framework, supra note 18.
69. See id. at 987-1001 (discussing the CESCR's approach to interpreting Article
15(1)(c) of the ICESCR).
1390
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
three possible futures of this framework. 70 Picking up on where
Professor Helfer left off, I revisited the drafting history of both the
UDHR and the ICESCR7 1 and outlined the different approaches
that could be used to determine which forms or aspects of intellectual property rights are supported by international and regional
human rights instruments.7 2 That article also responded to those
criticizing the ongoing efforts to engage in a human rights discourse in the intellectual property area. 73 Also appearing in the
U.C. Davis symposium was Kal Raustiala's cautious critique of the
human rights approach to intellectual property. 74 In his view, "the
embrace of IP [intellectual property] by human rights advocates
and entities ... is likely to further entrench some dangerous ideas
about property: in particular, that property rights as human rights
ought to be inviolable and ought to receive extremely solicitous attention from the international community."7 5
Although the articles in this symposium took a rather cautious
approach to examining the interplay of intellectual property and
human rights, an emerging strand of commentary appeared to elevate the status of intellectual property rights to that of human
rights.7 6 While this body of work mentioned the right to the protection of the moral and material interests resulting from intellectual
70. See id. at 1014-20 (discussing three possible futures of this framework: (1) "Using
Human Rights to Expand Intellectual Property"; (2) "Using Human Rights to Impose External Limits on Intellectual Property"; and (3) "Achieving Human Rights Ends Through
Intellectual Property Means").
71. See Yu, Reconceptualizing Intellectual Property Interests, supra note 18, at 104775. For detailed histories of the drafting of the UDHR, see MARY ANN GLENDON, A WORLD
MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
(2001); JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT
(1984); M. GLEN JOHNSON & JANUSZ SYMONIDES, THE UNIVERSAL
ADVENTURE
DECLARATION OF HUMAN RIGHTS: A HISTORY OF ITS CREATION AND IMPLEMENTATION, 19481998 (1998); JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:
ORIGINS, DRAFTING, AND INTENT (1999).
72.
1123.
73.
See Yu, Reconceptualizing Intellectual Property Interests, supra note 18, at 1075See id. at 1123-48.
74. Kal Raustiala, Density and Conflict in InternationalIntellectual Property Law, 40
U.C. DAVIS L. REV. 1021 (2007).
75. Id. at 1032; see also HELFER & AUSTIN, supranote 19, at 504-05 ("Some in the human rights community ... fear that intellectual property owners-in particular, multinational corporations-will invoke the creators' rights and property rights provisions of international instruments to lock in maximalist intellectual property rules that will further
concentrate wealth in the hands of a few at the expense of the many.").
76. See, e.g., Tom Giovanetti & Merrill Matthews, Inst. for Policy Innovation, Intellectual Property Rights and Human Rights, IDEAS (Inst. for Policy Innovation, Dallas, Tex.),
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1391
production, it also used the right to private property to provide an
alternative human rights basis for intellectual property rights.7 7
At times, this body of work elided the important distinctions between tangible and intangible property, thereby deemphasizing
the nonrivalrous and nonexcludable nature of intellectual property.7 8 Until the arrival of this body of "intellectual property as human rights" commentary, most scholarship in this area covered the
Sept. 2005, https://www.ipi.org/docLib/IPandHumanRights.pdf-OpenElement.pdf [https://
perma.cc/928L-A6DA] ("IP protection has long been recognized as a basic human right ....
[E]xpropriation of others' property not only undermines creation and invention, it also undermines economies and societies. It is, ironically, one of the most 'anti-human rights' actions governments could take.").
77. See Charter of Fundamental Rights of the European Union art. 17(2), Dec. 7, 2000,
2000 O.J. (C 364) 1 ("Intellectual property shall be protected."); Protocol to the Convention
for the Protection of Human Rights and Fundamental Freedoms art. 1, Mar. 20, 1952, 213
U.N.T.S. 262 ("Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest and
subject to the conditions provided for by law and by the general principles of international
law."); Special Rapporteur'sReport on Copyright Policy, supra note 17, ¶ 52 ("An alternative
human rights basis for intellectual property protection is recognized through the lens of the
right to property in the European regional human rights system, as well as in some national
constitutions both within and outside Europe."); HELFER & AUSTIN, supra note 19, at 510
("Seizing upon (and often misreading) the creators' rights and property rights clauses of
international instruments, [intellectual property] industries seek to lock in maximalist intellectual property protection by invoking the rhetoric of human rights as trumps."); Robert
L. Ostergard, Jr., Intellectual Property:A Universal Human Right?, 21 HUM. RTS. Q. 156,
175 (1999) ("The basis for [the designation of intellectual property as a universal human
right] without doubt lies in the Western conception of property rights."). But cf. Jan Brinkhof, On Patents and Human Rights, in A PARADOX, supra note 20, at 140, 146 (illustrating
the need to clarify the human rights basis of intellectual property rights by differentiating
between "a human right to a bicycle" and "an entitlement in human rights law to the protection of my property in the bicycle that I own"); Jakob Cornides, Human Rights and Intellectual Property: Conflict or Convergence, 7 J. WORLD INTELL. PROP. 135, 146 (2004) (questioning "whether intellectual property corresponds to the classic concept of property-i.e., a
plenary and unlimited right to possess, use, exploit or destroy something, or to grant or deny
access to it-or whether it is a sui generis right fulfilling a different purpose"); Yu, ReconceptualizingIntellectualPropertyInterests, supra note 18, at 1128-29 (stating that the right
to the protection of the moral and material interests resulting from intellectual production
"was not designed to protect the unqualified property-based interests in intellectual creations, but rather to protect the narrow interest of just remuneration for intellectual labor");
Yu, Anatomy, supra note 18, at 88-89 (noting that a property-based regime "does not provide adequate protection to the moral interests resulting from intellectual productions, such
as those protected through moral rights or other non-economic rights"). See generally OLEANDREAS ROGNSTAD, PROPERTY ASPECTS OF INTELLECTUAL PROPERTY (2018) (providing a
recently published and excellent discussion of the property aspects of intellectual property
rights).
78. For discussions of the distinctions between real property and intellectual property,
see Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031
(2005); Stewart E. Sterk, IntellectualizingProperty:The Tenuous Connections Between Land
and Copyright, 83 WASH. U. L.Q. 417 (2005). See also Peter K. Yu, Intellectual Property and
the Information Ecosystem, 2005 MICH. ST. L. REV. 1, 1-6 (discussing the controversy over
the term "intellectual property").
1392
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
interrelationship between intellectual property and human rights
and the human rights limits to intellectual property rights. 79
A decade and a half ago, a number of important international
and regional developments began to impact the debate on intellectual property and human rights. In September 2007, the Declaration on the Rights of Indigenous Peoples was finally adopted after
appearing in draft form for more than a decade.8 0 This Declaration
is particularly important to the ongoing efforts to strengthen protection for traditional knowledge and traditional cultural expressions. Article 31(1) of the Declaration specifically provides:
Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences,
technologies and cultures, including human and genetic resources,
seeds, medicines, knowledge of the properties of fauna and flora, oral
traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control,
protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 81
Two years later, the CESCR released General Comment No. 21,
its second authoritative interpretation of Article 15(1) of the
ICESCR.8 2 This time, the comment focused on the right to take
part in cultural life, as provided in Article 15(1)(a). 83 With the issuance of this interpretive comment, the only portion of Article
15(1) that the CESCR has not yet interpreted is the one concerning
"the right . . . [t]o enjoy the benefits of scientific progress and its
applications."84
In the past decade, even this so-called "right to science" has received growing attention following the expert meetings put together by UNESCO and several human rights and international
79. See Yu, Anatomy, supranote 18, at 44 ("In the past two decades, commentators have
participated in the debate on intellectual property and human rights (including the debate
on the human rights limits to intellectual property rights). Beginning in the late 1990s, they
have also begun engaging in the debate on intellectual property as human rights." (footnote
omitted)).
80. UNDRIP, supra note 46.
81. Id. art. 31(1).
82. General Comment No. 21, supra note 8.
83. ICESCR, supra note 9, art. 15(1)(a).
84. Id. art. 15(1)(b).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1393
law organizations.8 5 These meetings culminated in the adoption of
the Venice Statement on the Right to Enjoy the Benefits of Scientific
Progress and Its Application in July 2009.86 Three years later, the
first Special Rapporteur in the Field of Cultural Rights, Farida
Shaheed, issued a report on the right to science.8 7 This report was
quickly followed by a report examining the human rights impact of
copyright policy on the protection of this right8 8 and another report
on a similar impact in the patent area. 89
In November 2008, the World Blind Union, other nongovernmental organizations, and supportive governments in the developing world began to push for what eventually became the Marrakesh Treaty to Facilitate Access to Published Works for Persons
Who Are Blind, Visually Impaired or Otherwise Print Disabled
("Marrakesh Treaty"). 90 Aiming to provide individuals with print
85. See UNESCO, supra note 16, at 3 (noting the expert meetings in Venice, Amsterdam, and Galway).
86. See id. at 13-20.
87. Special Rapporteur'sReport on the Right to Science, supranote 17.
88. Special Rapporteur'sReport on Copyright Policy, supra note 17.
89. Special Rapporteur'sReport on Patent Policy, supra note 17.
90. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are
Blind, Visually Impaired or Otherwise Print Disabled, June 27, 2013, 52 I.L.M. 1312 [hereinafter Marrakesh Treaty]. As James Love recounted:
The idea for the treaty was first proposed by a WIPO/UNESCO consultant
Wanda Noel in 1985, but did not move in WIPO until the World Blind Union ...
and other [non-governmental organizations] including [Knowledge
Ecology International] proposed a draft treaty to WIPO in November 2008. In
May 2009 Brazil, Ecuador and Paraguay formally introduced the treaty text
where it first m[e]t stiff opposition from the United States and the European
Union.
James Love, KEI Statement on WIPO Decision to Hold June 2013 Diplomatic Conference for
Treaty on Copyright Exceptions for Disabilities,KNOWLEDGE ECOLOGY INT'L (Dec. 18, 2012),
https://www.keionline.org/22098 [https://perma.cclDS6E-SH28]. See generally LAURENCE R.
HELFER ET AL., THE WORLD BLIND UNION GUIDE TO THE MARRAKESH TREATY: FACILITATING
ACCESS TO BOOKS FOR PRINT-DISABLED INDIVIDUALS (2017) (providing a detailed commen-
tary on the Marrakesh Treaty). Molly Land noted the Treaty's key human rights contributions:
The Marrakesh Treaty ... lays a foundation for better translation of intellectual property issues into human rights advocacy on the domestic level. It does
this in two ways: first, by identifying a clear violation (for example, a "book
famine" for individuals with disabilities) that can be attributed to the effects
of intellectual property rules (needing a license from the copyright owner in
each country in order to create an accessible version of a book), and second, by
activating domestic human rights advocates, naming them as explicit partners
in intellectual property policy making and implementation on the domestic
level.
Land, Marrakesh Treaty, supra note 35, at 515 (footnote omitted).
1394
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
disabilities with easy or ready access to copyrighted publications,
and to address what has been referred to as "the global book famine,"91 the treaty was adopted on June 27, 2013 and entered into
force on September 30, 2016. Recital 1 of the preamble of the Marrakesh Treaty specifically recalled "the principles of non-discrimination, equal opportunity, accessibility and full and effective participation and inclusion in society, proclaimed in the Universal
Declaration of Human Rights and the United Nations Convention
on the Rights of Persons with Disabilities." 9 2 Such preambular language marked the first time a WIPO agreement explicitly referred
to obligations in an international human rights instrument.93 In
the view of Ahmed Abdel-Latif, "[this treaty], by responding to the
needs of a special category of users and consumers, and facilitating
their access to knowledge[,] contributes to the realization of the
[right to development] in terms of inclusive participation in decision-making processes and the achievement of social justice in development." 9 4
At the regional level, the past decade has seen courts in Europe
handing down important decisions in the area of intellectual property and human rights. The two most widely cited cases were Ashdown v. Telegraph Group Ltd. before the Court of Appeals of England and Wales 95 and Anheuser-Busch Inc. v. Portugalbefore the
91.
WIPO, THE MARRAKESH TREATY-HELPING TO END THE GLOBAL BOOK FAMINE 2
(2016), https://www.wipo.intledocs/pubdocs/en/wipo-pub-marrakesh-overview.pdf [https://
perma.cc/59N9-M67P].
92. Marrakesh Treaty, supranote 90, pmbl., recital 1.
93. As Ahmed Abdel-Latif observed:
This treaty marks a double precedent in WIPO's recent history. First, a WIPO
Treaty is solely devoted, for the first time, to limitations and exceptions addressing the needs of a specific category of users and consumers rather than
right holders. Second, it is the first international IP treaty to make reference
to human rights instruments.
Ahmed Abdel-Latif, The Right to Development: What Implicationsfor the MultilateralIntellectual Property Framework?, in RESEARCH HANDBOOK, supra note 20, at 605, 624. The
World Blind Union Guide concurred:
[The Marrakesh Treaty] is the first international legal instrument whose principal aim is to establish mandatory exceptions to the exclusive rights of copyright owners. It also marks the first time that the realization of international
human rights has been the explicit objective of a [WIPO] treaty and of the international system for the protection of intellectual property.
HELFER ET AL., supranote 90, at 91.
94. Abdel-Latif, supra note 93, at 624.
95. Ashdown v. Tel. Grp., Ltd., [2001] EWCA (Civ) 1142, [2002] Ch [149] (Eng.) (balancing copyright protection against the protection of freedom of expression in a case involving the newspaper's publication of a yet-to-be-published minute regarding a post-election
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1395
European Court of Human Rights ("ECtHR"). 96 In an important
article, Professor Helfer discussed not only Anheuser-Busch, but
also several other ECtHR cases that scholars have understudied or
overlooked. 97 Since then, that court-and, to a lesser extent, the
Court of Justice of the European Union-has undertaken greater
efforts to balance the protection of intellectual property rights with
that of fundamental rights.9 Such balancing is particularly salient
in cases involving Internet intermediaries, which implicate not
only the users' freedom of expression but also the intermediaries'
freedom to conduct a business, a fundamental right recognized by
Article 16 of the Charter of Fundamental Rights of the European
Union.99
Apart from all of these human rights-related developments, the
European Union, the United States, and other developed or likeminded countries have also been actively negotiating plurilateral
secret meeting between Paddy Ashdown and Prime Minister Tony Blair). For discussions of
this case, see Michael D. Birnhack, Acknowledging the Conflict Between Copyright Law and
Freedom of Expression Under the Human Rights Act, 14 ENT. L. REV. 24 (2003); Garnett,
supranote 55.
96. Anheuser-Busch Inc. v. Portugal, 45 Eur. Ct. H.R. 36 (2007) (Grand Chamber).
97. Laurence R. Helfer, The New Innovation Frontier?Intellectual Property and the European Court of Human Rights, 49 HARV. INT'L L.J. 1 (2008).
98. See Henning Grosse Ruse-Khan, Overlaps and Conflict Norms in Human Rights
Law: Approaches of European Courts to Address Intersections with Intellectual Property
Rights, in RESEARCH HANDBOOK, supra note 20, at 70, 71-78 (discussing the three leading
cases decided by the Court of Justice of the European Union that applied the right to property under the Charter of Fundamental Rights of the European Union); Laurence R. Helfer,
Mapping the Interface Between Human Rights and Intellectual Property, in RESEARCH
HANDBOOK, supra note 20, at 6, 7-8 [hereinafter Helfer, Mapping the Interface] (highlighting the two important recent judgments of the European Court of Human Rights); Tuomas
Mylly, The Constitutionalizationof the European Legal Order:Impact of Human Rights on
Intellectual Property in the EU, in RESEARCH HANDBOOK, supra note 20, at 103, 107-26
(tracing the evolution of the case law handed down by the Court of Justice of the European
Union concerning the interface between fundamental rights and intellectual property
rights).
99. See Charter of Fundamental Rights of the European Union art. 16, Dec. 7, 2000,
2012 O.J. (C 326) 391 ("The freedom to conduct a business in accordance with Union law
and national laws and practices is recognised.").
&
1396
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
trade agreements. 100 Because these agreements are being negotiated in nontransparent processes 0 1 that aimed to establish clubbased memberships, 102 they have raised serious concerns about
both human rights protection and the promotion of the rule of
law. 103 Among the more controversial plurilateral agreements are
the Anti-Counterfeiting Trade Agreement1 04 and the Trans-Pacific
Partnership ("TPP") Agreement.1 0 5 Following the United States'
100.
See generally INTELLECTUAL PROPERTY AND FREE TRADE AGREEMENTS (Christopher
Heath & Anselm Kamperman Sanders eds., 2007) (collecting essays that discuss free trade
agreements in the intellectual property context); Peter K. Yu, The Non-MultilateralApproach to InternationalIntellectualPropertyNormsetting, in INTERNATIONAL INTELLECTUAL
PROPERTY: A HANDBOOK OF CONTEMPORARY RESEARCH 83 (Daniel J. Gervais ed., 2015) (dis-
cussing TRIPS-plus bilateral, regional, and plurilateral trade agreements).
101. For discussions of the lack of transparency in the negotiations for the Anti-Counterfeiting Trade Agreement, see David S. Levine, Bring in the Nerds: Secrecy, National Security and the Creationof InternationalIntellectualProperty Law, 30 CARDOZO ARTS & ENT.
L.J. 105 (2012); David S. Levine, Transparency Soup: The ACTA Negotiating Process and
"Black Box" Lawmaking, 26 AM. U. INVL L. REV. 811 (2011); Peter K. Yu, Six Secret (and
Now Open) FearsofACTA, 64 SMU L. REV. 975, 998-1019 (2011) [hereinafter Yu, Six Secret
Fears].
102. For discussions of club-based memberships in relation to the Anti-Counterfeiting
Trade Agreement and the Trans-Pacific Partnership, see Daniel Gervais, Country Clubs,
Empiricism, Blogs and Innovation: The Future of InternationalIntellectual Property Norm
Making in the Wake of ACTA, in TRADE GOVERNANCE IN THE DIGITAL AGE: WORLD TRADE
FORUM 323 (Mira Burri & Thomas Cottier eds., 2012); Peter K. Yu, The ACTA/TPP Country
Clubs, in ACCESS TO INFORMATION AND KNOWLEDGE: 21ST CENTURY CHALLENGES IN
INTELLECTUAL PROPERTY AND KNOWLEDGE GOVERNANCE 258 (Dana Beldiman ed., 2013)
[hereinafter Yu, ACTA/TPP Country Clubs].
103. See General Comment No. 17, supra note 8, 1 34 ("The obligation to fulfil (promote)
requires States parties to ensure the right of authors of scientific, literary and artistic productions to take part in the conduct of public affairs and in any significant decision-making
processes that have an impact on their rights and legitimate interests . . . ."); Special Rapporteur's Report on Copyright Policy, supra note 17, 1 92 ("International intellectual property instruments, including trade agreements, should be negotiated in a transparent way,
permitting public engagement and commentary."); Special Rapporteur's Report on Patent
Policy, supra note 17, 1T 73-76 (noting the importance of public participation and transparency in intellectual property policymaking in bilateral and multilateral fora); HELFER
AUSTIN, supra note 19, at 512-13 (noting that "the process, transparency, and predictability
values . . . are hallmarks of the rule of law" and that "the connection between human rights
and the rule of law is well established [today] and provides additional arguments for contesting intellectual property initiatives that conflict with rule of law values" (footnote omitted)); Rhona Smith, Human Rights Based Approaches to Research, in RESEARCH METHODS
IN HUMAN RIGHTS, supra note 29, at 6, 7 ("[A] human rights based approach will focus on
not only the outcome . . . , but how that outcome is achieved (coordination with stakeholders,
both duty bearers and rights holders).").
104. Anti-Counterfeiting Trade Agreement, opened for signatureMay 1, 2011, 50 I.L.M.
243 (2011). For this author's discussions of ACTA, see Yu, ACTA/TPP Country Clubs, supra
note 102; Peter K. Yu, ACTA and Its Complex Politics, 3 WIPO J. 1 (2011); Peter K. Yu,
Enforcement, Enforcement, What Enforcement?, 52 IDEA INTELL. PROP. L. REV. 239 (2012);
Yu, Six Secret Fears, supra note 101.
105. Trans-Pacific Partnership Agreement, Feb. 4, 2016, https://ustr.gov/trade-agree
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1397
withdrawal from the TPP, 1 0 6 the latter instrument has been replaced by the Comprehensive and Progressive Agreement for
Trans-Pacific Partnership ("CPTPP").107 In response to the
TPP/CPTPP negotiations, China, India, and other Asian developing countries have also championed the development of their own
plurilateral initiative, the Regional Comprehensive Economic
Partnership ("RCEP"). 10s
Finally, in the academic circle, a growing number of commentators have explored issues lying at the intersection of intellectual
property and human rights. In 2007, Holger Hestermeyer published an important book covering the intersection of human
rights, international trade, and access to medicine. 109 This book
highlighted an important and unique challenge:
ments/free-trade-agreements/trans-pacific-partnership/tpp-full-text [https://perma.cc/TZ32
-3F6T]. For this author's discussions of the TPP, see Yu, ACTA/TPP Country Clubs, supra
note 102; Peter K. Yu, TPP, RCEP, and the Crossvergence of Asian Intellectual Property
Standards, in GOVERNING SCIENCE AND TECHNOLOGY UNDER THE INTERNATIONAL
EcONOMIC ORDER: REGULATORY DIVERGENCE AND CONVERGENCE IN THE AGE OF
MEGAREGIONALS 277 (Peng Shin-yi et al. eds., 2018) [hereinafter Yu, TPP, RCEP, and
Crossvergence]; Peter K. Yu, TPP, RCEP and the Future of Copyright Norm-Setting in the
Asian Pacific, in MAKING COPYRIGHT WORK FOR THE ASIAN PACIFIC? JUXTAPOSING
HARMONISATION WITH FLEXIBrLITY 19 (Susan Corbett & Jessica C. Lai eds., 2018) [hereinafter Yu, TPP, RCEP and Copyright Normsetting]; Peter K. Yu, Thinking About the TransPacificPartnership(and a Mega-RegionalAgreement on Life Support), 20 SMU SCl. & TECH.
L. REV. 97 (2017) [hereinafter Yu, ThinkingAbout TPPJ; Peter K. Yu, TPPand Trans-Pacific
Perplexities, 37 FORDHAM INT'L L.J. 1129 (2014).
106. See Yu, Thinking About TPP, supra note 105, at 101-10 (discussing the United
States' withdrawal from the partnership and its aftermath).
107. Comprehensive and Progressive Agreement for Trans-Pacific Partnership, Mar. 8,
2018, http://dfat.gov.aultrade/agreements/not-yet-in-force/tpp-11/official-documents/Docu
ments/tpp-11-treaty-text.pdf [https://perma.cclRL5Z-AGWL; see also Yu, Thinking About
TPP, supra note 105, at 104-06 (discussing the CPTPP); CPTPP vs. TPP, N.Z. MINISTRY
FOREIGN AFF. & TRADE, https://www.mfat.govt.nz/en/trade/free-trade-agreements/agreem
ents-under-negotiation/cptpp-2/tpp-and-cptpp-the-differences-explained/
[https://perma.
cc/52VM-XX8D] (last visited Apr. 1, 2019) (explaining the differences between the TPP and
the CPTPP).
108. ASEAN Plus Six, Joint Declaration on the Launch of Negotiations for the Regional
Comprehensive Economic Partnership (Nov. 20, 2012), https://dfat.gov.aultrade/agree
ments/negotiations/rcep/news/Documents/joint-declaration-on-the-launch-of-negotiationsfor-the-regional-comprehensive-economic-partnership.pdf
[https://perma.cclW36P-XB4R]
(launching the negotiations on the RCEP). For this author's discussions of the RCEP, see
Peter K. Yu, The RCEP and Trans-Pacific Intellectual Property Norms, 50 VAND. J.
TRANSNAT'L L. 673 (2017); Peter K. Yu, The RCEPNegotiations and Asian Intellectual Property Norm Setters, in THE FUTURE OF ASIAN TRADE DEALS AND INTELLECTUAL PROPERTY
(Liu Kung-Chung & Julien Chaisse eds., forthcoming 2019); Yu, TPP, RCEP, and Crossuergence, supra note 105; Yu, TPP, RCEP and Copyright Normsetting, supra note 105.
109.
HESTERMEYER, supra note 21.
UNIVERSITY OF RICHMOND LAW REVIEW
1398
[Vol. 53:1375
What makes [the conflict between the TRIPS Agreement and human
rights] particularly problematic is that [these] rights, while not in general legally on a higher normative level, at least have a higher normative appeal than WTO law. However, its strong enforcement system
puts WTO law on a higher level in a factual hierarchy of regimes, so
that ultimately state behaviour will largely be determined by the so110
lution found within the WTO regime.
A year later, Paul Torremans expanded his collection of essays
from copyright and related issues to cover all forms of intellectual
property rights.1 1 1 That collection entered its third edition in 2015
and is now on its way to a fourth edition. 112 Willem Grosheide also
published Intellectual Property and Human Rights: A Paradox.113
This edited volume collected papers presented at a conference celebrating the twentieth anniversary of the Centre for Intellectual
Property Law of the Molengraaff Institute for Private Law at
Utrecht University in the Netherlands. 1 1 4
As if these publications were not enough, Laurence Helfer and
Graeme Austin published a pioneering textbook entitled Human
Rights and Intellectual Property: Mapping the Global Interface.1 15
This 2011 book is the first student text written in this highly specialized area. Before its publication, professors interested in teaching a course on intellectual property and human rights had to put
together their own reading materials.1 1 6 A few years later, Christophe Geiger also put together an excellent Research Handbook on
Human Rights and Intellectual Property.117 With thirty-five chapters, this comprehensive volume collected papers presented at the
Fifteenth European Intellectual Property Institutes Network
("EIPIN") Congress on "Human Rights and Intellectual Property:
From Concepts to Practice." 118 Held at the Court of European Human Rights in Strasbourg, the event was organized by the Centre
110.
Id. at xxxv.
111.
INTELLECTUAL PROPERTY AND HUMAN RIGHTS (Paul L.C. Torremans ed., expanded
ed. 2008).
112.
INTELLECTUAL PROPERTY LAw AND HUMAN RIGHTS, supra note 20; INTELLECTUAL
PROPERTY LAw AND HUMAN RIGHTS (Paul L.C. Torremans ed., 4th ed. forthcoming 2020).
113.
A PARADOX, supranote 20.
114.
Willem Grosheide, Preface to A PARADOX, supra note 20, at ix, ix.
115.
HELFER & AUSTIN, supra note 19.
116. See id. at xv ("Partly because of the novelty of the topic, no teaching materials existed, a gap that endures today.").
117.
RESEARCH HANDBOOK, supra note 20.
118.
Christophe Geiger, Introduction to RESEARCH HANDBOOK, supra note 20, at 1, 4.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1399
for International Intellectual Property Studies at the University of
Strasbourg. 119
Apart from books and scholarly articles examining the more traditional issues at the intersection of intellectual property and human rights, commentators have begun to tackle new topics. These
topics include Internet-related human rights, the right to science
and culture, the use of human rights impact assessments in the
intellectual property area, the human rights challenges posed by
bilateral, regional, and plurilateral trade agreements, and, most
recently, human rights issues implicated by artificial intelligence. 12 0 Thus, the linkage of intellectual property and human
rights has not only brought new perspectives to the intellectual
property debate, but has also invited intellectual property scholars
to examine existing and new topics through a human rights lens.
In sum, although the field of intellectual property and human
rights was pretty nascent when the UDHR reached its fiftieth anniversary, it has since been greatly enriched by new human rights
decisions and documents, a growing volume of scholarship at the
intersection of intellectual property and human rights, and a plethora of new issues that deserve attention from scholars undertaking
research in this intersectional area. The time is therefore ripe for
us to explore how we can further advance the scholarly debate in
this area.
II. HUMAN RIGHTS METHODS AND METHODOLOGY
In light of the myriad developments in the area of intellectual
property and human rights in the past two decades, one has to
wonder what other issues and perspectives can be examined to advance research in this area. While scholars will undoubtedly develop new theories, analyses, and perspectives, this part calls for
greater attention to the methods and methodology used to conduct
research in this area.
A greater methodological engagement is imperative for three
reasons. First, despite the growing volume of scholarship on intel-
119.
120.
Id.
See supra notes 24-28 (collecting sources that provide discussions in these areas).
1400
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
lectual property and human rights, commentators have not devoted much space to articulating the different methods used in this
body of scholarship (even though some scholarship in this area has
revealed careful and thoughtful methodological choices). 12 1 As
analysis on intellectual property and human rights becomes more
systematic, and in view of the groundwork that has already been
laid, it is time we identified and explored in greater depth the
methods and methodology used to conduct research in this area.
Second, the past few years have seen a growing volume of literature examining human rights methods and methodology.1 2 2 The
time is ripe for intellectual property and human rights scholarship
to take a methodological turn to further engage with this emerging
body of work. 1 2 3 Third, whether researchers admit it or not, the
choice of methods tends to affect the outcome of their analyses. 124
A deeper understanding of the research tools, models, and methods
used will therefore enable them to better understand the
strengths, limitations, and potential biases of their approaches.
Although the length and scope of this article do not allow for a
detailed discussion of the different methods used in human rights
research, this part highlights three dominant methodological
choices: (1) comparative methods; (2) quantitative assessments;
121. See Eva Brems, Methods in Legal Human Rights Research, in METHODS OF HUMAN
RIGHTS RESEARCH, supra note 29, at 77, 84 ("It is one thing to use a method, it is another
thing to reflect upon it and it is yet another thing to report on the method you used in your
published research.').
122. See supranote 29 (collecting sources that discuss this growing volume of literature).
123.
See Fons Coomans et al., A Primer,in METHODS OF HUMAN RIGHTS RESEARCH, su-
pra note 29, at 11, 12 ("[Ilf there is indeed a methodological deficit in human rights scholarship it is more urgent in respect of legal research than in respect of research by social scientists.").
124. See Lee McConnell & Rhona Smith, "MixingMethods" Reflections on Compatibility,
in RESEARCH METHODS IN HUMAN RIGHTS, supra note 29, at 150, 163 ("Researchers should
be aware that different methods can result in different approaches to a problem."); see also
Andreassen et al., supranote 31, at 4 ("In making methodological choices, the researcher ...
usually acknowledges and explores underlying premises, value commitments and theories."); Suzanne Egan, The DoctrinalApproach in InternationalHuman Rights Law Scholarship, in RESEARCH METHODS IN HUMAN RIGHTS, supra note 29, at 24, 36 ("The critique ...
to the effect that doctrinal scholars sometimes fail to acknowledge the theoretical, ideological or value-perspective on which their analysis is based applies . .. to doctrinal scholarship
in the field of international human rights."); Anne Peters, Realizing Utopia as a Scholarly
Endeavour, 24 EUR. J. INT'L L. 533, 542 (2013) ("A complete value-free academic activity
appears impossible, because any kind of statement and any interpretation are pre-structured by the speaker's Vorverstdndnis [preconceptions].... [A]11 academic activity is inescapably political.").
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1401
and (3) contextual analyses. The discussion of these choices illustrates the importance of methodological rigor in scholarship on intellectual property and human rights. That discussion will showcase the existence of a wide variety of research methods beyond
doctrinal interpretation-the favorite method used by legal scholars and those human rights scholars who focus primarily on statutory rights and international treaty obligations. 12 5 This part underscores the frequent need to use more than one method to
conduct research in the area of intellectual property and human
rights.
A. Comparative Methods
With the growing discussion of human rights protection in the
global context and in relation to international and regional human
rights instruments, the wide use of comparative methods is unsurprising. 126 These methods "provide ways ... to compare similarities and differences across countries to arrive at a series of generalizations
about particular
human rights problems." 12 7
Comparative research will not only provide useful insights into the
protection of human rights across the world, 128 but will also help
As Suzanne Egan observed:
[T]he doctrinal method is one of the oldest research methodologies known to
legal scholarship and one that is very much associated with the practising legal
profession.... [This] method is ... a valuable research technique in elucidating and critiquing the content and normative reach of law. When skilfully executed, its value lies in illuminating and critiquing legal reasoning, highlighting trends and predicting the implications of particular case law. Increasingly,
doctrinal research acts as a complement to empirical research by explaining
the normative assumptions on which an empirical project is based. This is particularly true in the case of international human rights scholarship in which
doctrinal scholarship and social science methods very often go hand in hand in
explaining the substance of human rights and the extent to which such rights
are being adequately protected.
Egan, supra note 124, at 41; see also LANDMAN, supra note 26, at 1 ("The field of human
rights has long been dominated by the discipline of law, which has been dedicated to studying (and in part advancing) the normative evolution in the promotion and protection of human rights." (citation omitted)).
126. See BArd A. Andreassen, Comparative Analyses of Human Rights Performance, in
RESEARCH METHODS HANDBOOK, supra note 29, at 222, 222 ("Human rights protection and
monitoring inevitably entail comparison. When international human rights bodies discuss
human rights performance in single countries or across countries, they apply comparative
approaches to receive reliable understandings of the state of affairs.").
127. Todd Landman, Social Science Methods and Human Rights, in METHODS OF HUMAN
125.
RIGHTS RESEARCH, supra note 29, at 19, 31.
128.
See Sue Farran, ComparativeApproaches to Human Rights, in RESEARCH METHODS
.
1402
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
deepen our understanding of the limitations of human rights protection in the intellectual property area. Thus far, researchers have
identified different approaches to conduct comparative studies.
These approaches depend on how much the researchers want to
zoom in on the human rights developments in question. 129
Research of the broadest scale involves global comparisons,
which "tend to make broad ranging empirical generalizations us30
ing concepts and constructs at a fairly high level of abstraction."1
These comparisons "typically involve [ the use of large and complex
data sets comprised of variables that have been operationalised
quantitatively .. . and have been specified in such a way that they
can be measured over time and across space." 131 According to Todd
Landman, a leading expert on human rights measurements, "[t]he
main strengths of this kind of analysis include statistical control
to rule out rival explanations, extensive coverage of cases, the ability to make strong inferences, and the identification of 'deviant'
cases or 'outliers'." 132
By contrast, research of the smallest scale involves a single country. This type of single-case analysis "tends to limit .
.
. its empiri-
cal generalizations and concentrates on the contextual particularities of the single case under investigation, but can be constructed
in such a way to contribute to larger theoretical and empirical
IN HUMAN RIGHTS, supranote 29, at 134, 137 [hereinafter Farran, ComparativeApproaches]
("Comparative insights might ... provide a deeper and broader appreciation of how the law
works in different contexts. This is particularly relevant to human rights, because the context requires us to take into account political, cultural and socio-economic factors."); Rhona
Smith & Lee McConnell, Introduction to Human Rights Research Methods, in RESEARCH
METHODS IN HUMAN RIGHTS, supra note 29, at 1, 5 ("Comparative approaches can be used
to contextualise knowledge and understanding. They can offer cross-cultural or transcontinental understandings.").
129. See LANDMAN, supra note 26, at 64-65 ("There are three general comparative methods available to social scientists of human rights: global comparisons, few-country comparisons, and single-case studies. The trade-offs associated with these methods involve the degree to which each can make broad-ranging empirical generalizations at different levels of
theoretical and conceptual abstraction.").
130. Landman, supra note 127, at 31; see also Andreassen, supra note 126, at 226
("[L]arge-n comparison (sometimes referred to as global comparison or statistical comparison) aims at statistical analysis and explanatory generalizations . .
131. Landman, supra note 127, at 31.
132. Id.; see also Andreassen, supra note 126, at 240-41 ("A main strength of global or
statistical comparison is that by statistical control we may rule out alternative explanations,
give evidence for strong inferences and theory-building, and identify 'deviant' cases or 'outliers', that is, surprising or unexpected values on the dependent variable of the unit (country) given the value of the independent variable.").
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1403
problems." 133 Classic examples of single-case analysis "include official reports from international governmental and non-governmental organizations, domestic commissions and [non-governmental organizations], journalistic and descriptive accounts, and
research monographs." 1 3 4 Frequently, researchers use single-case
analyses to explore the human rights practices in "problematic"
countries. 135 Cases in point are those conducted on the limited Internet freedoms enjoyed by netizens in China, Russia, and the Mid-
dle East. 136
Single-case analyses have several strengths. As Professor Landman noted, these analyses "provide important contextual description upon which other studies build their analyses." 137 They may
also feature comparisons over time using time series data.1 38 In
addition, single-case analyses, such as single-country studies, provide three additional benefits:
Beyond their pure descriptive function, single-country studies can
make significant and valuable contributions to the study of human
rights . . . [by] establishing new classifications . . .. [These] studies
are also useful for generating hypotheses for theories that have yet to
be specified fully. As "plausibility probes", single-country studies explicitly (or implicitly) suggest that the generated hypothesis ought to
be tested in a larger selection of countries. . . . Finally, single-country
studies are useful if they act as "crucial" cases drawn from theoretical
133. Landman, supra note 127, at 31; see also Andreassen, supra note 126, at 226 ("Single case study design ... aims at in-depth analysis of individual cases.").
134. Landman, supra note 127, at 36; see also International Covenant on Civil and Political Rights art. 40(1), Dec. 16, 1966, 999 U.N.T.S. 171 (1976) (requiring parties to the
covenant to "submit reports on the measures they have adopted which give effect to the
rights recognized herein and on the progress made in the enjoyment of those rights");
ICESCR, supra note 9, arts. 16-17 (requiring contract parties to submit reports on measures
relating to the rights protected under the ICESCR); Judith Eleanor Innes, Human Rights
Reporting as a Policy Tool: An Examination of the State Department Country Reports, in
HUMAN RIGHTS AND STATISTICS, supra note 29, at 235 (analyzing the U.S. State Department's Country Reports on Human Rights Practice).
135. See Landman, supra note 127, at 36 (noting that single-country studies have "focus[ed] on countries with particularly problematic human rights records").
136.
See generally ACCESS DENIED: THE PRACTICE AND POLICY OF GLOBAL INTERNET
FILTERING (Ronald Deibert et al. eds., 2008) (documenting the information-control policies
in these countries and other parts of the world).
137. Landman, supranote 127, at 68.
138. See Andreassen, supra note 126, at 222 (noting that the gap between rights in principle and rights in practice "can be compared ... within a country over time by use of time
series data").
1404
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
expectations and propositions about the world. Such crucial case studies can confirm or infirm existing theories and are therefore conducted
39
within the confines of extant generalizations.1
Somewhere between global comparisons and single-case analyses are those studies covering a select group of countries, usually
based on similar characteristics, geographical proximity, or organizational memberships. These focused comparisons "tend to limit
their generalizations and lower the level [of] abstraction in analysing human rights problems across a selection of countries." 140 Because researchers carefully choose the countries they study, 14 1 the
resulting analyses feature "more of the nuances specific to [the
cases concerned]" even though they are more intensive than global
comparisons.1 42 Classic examples are regional and area studies,
which "compare(l countries that share similar history, language,
religion, politics, and culture and then isolate[] the remaining factors that vary across the cases to see if that variation is related to
139. Landman, supra note 127, at 36-37 (footnote omitted).
140. Id. at 31.
141. These countries are generally selected based on two methods: most similar system
design ("MSSD") and most different system design ("MDSD"). MSSD "compares countries
that are similar on as many features as possible assuming that this provides the optimal
sample for comparison. . . . MDSD selects countries that share few common features apart
from the political outcome to be explained, or one or two explanatory factors (independent
variables) likely to explain the outcome." Andreassen, supra note 126, at 244-45. As Professor Landman explained:
Both MSSD and MDSD seek to identify a relationship between explanatory
factors and outcomes by comparing different outcomes across similar countries
or similar outcomes across different countries. Of the two research designs,
MSSD is slightly more robust, since it allows for the presence of different outcomes across the countries under investigation, such that the dependent variable is actually allowed to vary. In contrast, MDSD does not allow for the presence of different outcomes, and thus has no variance in the dependent variable
(a form of selection bias). MDSD thus establishes a concomitance of explanatory factors and outcomes since it does not allow for "negative" instances of the
outcomes being examined. Moreover, the number of outcomes that have actually occurred in the world limits the number of countries this framework of
analysis can include in any one comparison (i.e. there are a finite number of
outcomes of interest).
Landman, supra note 127, at 34 (footnote omitted).
142. Landman, supranote 127, at 33; see also Andreassen, supranote 126, at 244 ('While
few-cases comparison can draw on statistical evidence, it is generally more intensive and
contextual than large-n comparison. It gives more space to the description and analysis of
each case, and may also typically take a historical (longitudinal or short) perspective. A
focus on differences and similarities of cases rather than differences in the relationship between variables, makes it 'case oriented' as opposed to the 'variable orientation' of large-n
comparison.").
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1405
the variation in the outcome that is to be explained."1 43 As widely
used as they are, studies that rely on few-n comparisons suffer
from two methodological weaknesses:
First, such studies may identify a large number of explanatory variables whose full variation far exceeds the number of countries under
investigation. This problem is commonly labelled "too many variables,
not enough countries", or "too many inferences and not enough observations ...
Second, the intentional selection of cases rather than a random
selection can seriously undermine the types of inferences that can be
drawn. This problem is known as selection bias, and occurs in comparative politics through the non-random choice of countries for comparison, or the deliberative selection by the comparativist.1 44
Thus far, this subpart has focused only on the size of the comparative sample. Once researchers have figured out whether to undertake a large-n, few-n, or single-case study, they will have to further determine what to compare (tertium comparationis)145 and
what comparison will be meaningful in the intellectual property
context. To achieve the latter, the researcher will need to select the
best option to assess the differing levels of intellectual property
protection and enforcement-issues that will be discussed in the
next subpart on quantitative assessments.1 4 6
Complications could arise considering the significantly different
developments in countries with well-established intellectual property systems and those having nascent but rapidly improving systems. For the latter group of countries, it will be quite important
to study not only the human rights developments at the time of the
research project, but also changes in these developments, as well
as the potential trends that would, or could, affect future developments. 147 These changes and trends are particularly important in
143. Landman, supra note 127, at 33-34.
144. Id. at 34-35 (footnote omitted).
145. See Peter K. Yu, Enforcement, Economics and Estimates, 2 WIPO J. 1, 13-17 (2010)
[hereinafter Yu, Enforcement, Economics and Estimates] (discussing the challenges of locating the tertium comparationisin comparative analysis).
146. See infra text accompanying notes 172-78 (discussing the various data sources or
indicators that have been used to measure intellectual property protection and enforcement).
147. See LANDMAN & CARVALHO, supra note 29, at 40 (noting the use of indices to "track
both the level of development and the change in development, both of which are ... linked
to the notion of fulfilling social and economic rights").
1406
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
countries that are experiencing rapid development of their intellectual property systems. In China, for instance, analyzing the relationship between intellectual property and human rights today
is likely to differ significantly from such an analysis a decade
ago. 148
B. QuantitativeAssessments
In the past decade, legal scholarship has taken an empirical
turn. 149 Like legal scholarship, human rights scholarship has also
increasingly emphasized empirical analysis-in particular, analysis in quantitative terms.15 0 Quantitative assessments focus on
"the distributions [the collected] data exhibit and the relationships
that can be established between numeric variables using simple
and advanced statistical methods." 15 1 These assessments are "particularly useful for identifying trends and patterns which are statistically significant.
alyse phenomenon."
. .
. [They] can also be used to objectively an-
152
To a large extent, the growing emphasis on quantitative analysis
has been the result of the growing demand for human rights impact assessments. 153 Such assessments have become increasingly
148. See Peter K. Yu, A Half-Century of Scholarshipon the Chinese Intellectual Property
System, 67 AM. U. L. REV. 1045, 1079-87 (2018) (discussing the development of the Chinese
intellectual property system at its indigenization and transformation phase); Peter K. Yu,
The Rise and Decline of the Intellectual PropertyPowers, 34 CAMPBELL L. REV. 525, 529-32
(2012) (noting that China is at the cusp of crossing over from a pirate nation to a country
respectful of intellectual property rights); Peter K. Yu, When the Chinese Intellectual Property System Hits 35, 8 QUEEN MARY J. INTELL. PROP. 3 (2018) (discussing the transformation
of the Chinese intellectual property regime in the past thirty-five years).
149.
See generally THE OXFORD HANDBOOK OF EMPIRICAL LEGAL RESEARCH (Peter Cane
& Herbert M. Kritzer eds., 2010) (providing an excellent collection of articles discussing
empirical legal research); Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 AM. J. INT'L L. 1 (2012) (discussing the empirical turn in
international legal scholarship).
150. See Paul Gready, Telling Truth?: The Methodological Challenges of Truth Commissions, in METHODS OF HUMAN RIGHTS RESEARCH, supra note 29, at 159, 159 ("Research
methods are a relatively recent concern of both human rights organizations and academics
studying human rights."); Smith & McConnell, supra note 128, at 4-5 ("Increasingly, human
rights are defined in terms of indicators-the millennium development goals are a prime
example-and thus quantitative methods are required to populate progress charts and
demonstrate compliance with standards.").
151. Landman, supranote 127, at 39.
152. Smith & McConnell, supranote 128, at 4.
153. See Audrey R. Chapman, Development of Indicators for Economic, Social and Cul-
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1407
common in not only the human rights field, but also in the areas of
public health and biological diversity. 154 Assessment, evaluation,
and impact studies also constitute one of the six clusters of recommendations adopted as part of the WIPO Development Agenda in
October 2007.155
tural Rights: The Rights to Education, Participationin Cultural Life and Access to the Benefits of Science, in HUMAN RIGHTS IN EDUCATION, supra note 15, at 111, 111 [hereinafter
Chapman, Development of Indicators] ("Effective monitoring requires the systematic collection and analysis of appropriate data."); LANDMAN & CARVALHO, supra note 29, at 2 ("The
measurement and monitoring of human rights has been a mainstay activity of human rights
non-governmental organizations . .. primarily for advocacy purposes and since the 1980s
has become increasingly important for a wide range of human rights scholars and practitioners working across the broad spectrum of human rights issue areas from many different
disciplinary perspectives."); Simon Walker, Challenges of Human Rights Measurement, in
RESEARCH METHODS HANDBOOK, supra note 29, at 306, 307 ("The need for more accurate
measurement has intensified recently with the expansion of human rights monitoring
through commissions of inquiry, truth commissions and protection work in conflict and postconflict zones, as well as prosecutions before international courts. Governments, business
enterprises and civil society organizations are increasingly undertaking human rights impact assessments of laws, policies and practices. . . .").
154. See, e.g., Convention on Biological Diversity art. 14(1)(a), June 5, 1992, 1760
U.N.T.S. 143 (requiring contracting parties to "[i]ntroduce appropriate procedures requiring
environmental impact assessment of its proposed projects that are likely to have significant
adverse effects on biological diversity with a view to avoiding or minimizing such effects
and, where appropriate, allow for public participation in such procedures"); General Comment No. 17, supra note 8, ¶ 35 ("States parties should ... consider undertaking human
rights impact assessments prior to the adoption and after a period of implementation of
legislation for the protection of the moral and material interests resulting from one's scientific, literary or artistic productions."); Special Rapporteur'sReport on Copyright Policy, supra note 17, ¶¶ 94, 96 ("International copyright instruments should be subject to human
rights impact assessments and contain safeguards for freedom of expression, the right to
science and culture, and other human rights. . . . States should complete a human rights
impact assessment of their domestic copyright law and policy, utilizing the right to science
and culture as a guiding principle."); Special Rapporteur'sReport on Patent Policy, supra
note 17, TT 95, 97 ("International patent instruments should be subject to human rights
impact assessments and contain safeguards for human rights, including the right to health,
food, science and culture.... States should complete a human rights impact assessment of
their domestic patent law and policy."); COMM'N ON INTELLECTUAL PROP. RIGHTS,
INNOVATION & PUB. HEALTH, WORLD HEALTH ORG., PUBLIC HEALTH, INNOVATION AND
INTELLECTUAL PROPERTY RIGHTS 10 (2006) (stating that "[h]ealth policies, as well as inter
alia those addressing trade, the environment and commerce, should be equally subject to
assessments as to their impact on the right to health"); HARRISON, supra note 26, at 228
("Systematic environmental assessments of trade agreements are relatively common. Norway, the US and Canada all carry out reviews of the environmental impact of trade policies
which include some international impact assessment, as do the United Nations Environment Programme and World Wildlife Fund.").
155. See The 45 Adopted Recommendations Under the WiPO Development Agenda,
WIPO, http://www.wipo.int/export/sites/www/ip-developmentlen/agenda/recommendations.
pdf [https://perma.cc/M654-7K7V] (last visited Apr. 1, 2019).
1408
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
Although it is generally a good idea to conduct empirical analysis, undertaking quantitative assessments on human rights protection is not always easy. The protection of some human rights,
such as the freedom of opinion and expression, is particularly hard
to quantify. Although freedom indicators or indices do exist and
provide useful summative assessments, commentators have questioned their validity and reliability.1 5 6
In the area of economic, social, and cultural rights, to which the
right to the protection of the moral and material interests resulting
from intellectual production belong, researchers have amassed a
wide variety of data for quantitative assessment purposes. 157 To
evaluate the protection and fulfillment of the right to health, for
example, researchers can analyze "death rates (mortality), illness
(morbidity), health behaviors, or health knowledge." 15 8 They could
also examine the right with respect to its essential elements (such
as availability, accessibility, acceptability, and quality1 5 9 ) or its
156. See LANDMAN, supra note 26, at 65 (noting that "serious questions remainj] about
the validity and reliability" of some of the widely used human rights measures). One of the
most widely used freedom indicators are those Freedom House has provided since 1973. See
FREEDOM HOUSE, FREEDOM IN THE WORLD 2018 (2018), https://freedomhouse.org/sites/def
[https://perma.ccRX9C-CWVL
ault/files/FHFITW Report_2018_Final SinglePage.pdf
(providing the latest report that evaluates the state of freedom in 195 countries and 14 territories in 2017); Raymond Duncan Gastil, The ComparativeSurvey of Freedom: Experiences
and Suggestions, 25 STUD. COMP. INT'L DEV. 25 (1990) (discussing the early methodology
advanced for the Comparative Survey of Freedom, produced by Freedom House from 1975
to 1989); see also LANDMAN & CARVALHO, supra note 29, at 37-38 (providing other examples
of standards-based measures, such as "the 'political terror scale', a scale of torture, and a
series of seventeen different rights measures collected by Cingranelli and Richards" (citations omitted)). Nevertheless, researchers have noted problems with these indicators. See
LANDMAN & CARVALHO, supra note 29, at 68-73 (discussing the Freedom House checklist
for political rights and civil liberties); George A. Lopez & Michael Stohl, Problemsof Concept
and Measurement in the Study of Human Rights, in HUMAN RIGHTS AND STATISTICS, supra
note 29, at 216, 223 (discussing the shortcomings of the indicators provided by Freedom
House); see also Malcolm Langford, Interdisciplinarity and Multimethod Research, in
RESEARCH METHODS HANDBOOK, supra note 29, at 161, 179-80 (noting the problems posed
by human rights indicators).
157. But cf. SiobhAn McInerney-Lankford, Legal Methodologies and Human Rights Research: Challenges and Opportunities, in RESEARCH METHODS HANDBOOK, supra note 29,
at 38, 52 ("[Q]uantitative methods may be more difficult to use for economic and social rights
than for civil and political rights.").
158. HELFER & AUSTIN, supra note 19, at 321; see also Dabney Evans & Megan Price,
Measure for Measure: Utilizing Legal Norms and Health Data in Measuring the Right to
Health, in METHODS OF HUMAN RIGHTS RESEARCH, supra note 29, at 111 (advancing an
approach that combines human rights discourse with traditional public health data analyses).
159. See Comm. on Econ., Soc. & Cultural Rights, General Comment No. 14: The Right
to the Highest Attainable Standard of Health (Art. 12), T 12, U.N. Doc. E/C. 12/2000/4 (Aug.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1409
three distinct obligations (to respect, to promote, and to fulfill).1 6 0
Likewise, regarding the right to education, researchers can examine basic literacy and numeracy rates; costs, quality, and level of
education; and percentage of government spending on different
forms of education.161
To foster research in this area, the OHCHR put together a list of
indicators regarding the rights to life, food, health, and education
and the freedom of opinion and expression, among others. 162 These
indicators have been further divided based on their different attributes and a three-level standard typology (structural, process,
and outcome). 163 Although this typology effectively separates the
different types of indicators, some commentators worry that the
typology may undermine the respect-protect-fulfill framework
used widely in the international human rights system. 164
Notwithstanding these helpful assessment tools, some rights,
especially those in the areas of economic, social, and cultural
rights, have remained highly difficult to measure, due in large part
to their limited normative development. As Audrey Chapman reminded us: "The determination of which data are relevant [for empirical analysis] requires translating the abstract legal norms in
which various human rights covenants are framed into operational
11, 2000) (including availability, accessibility, acceptability, and quality among the "interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular State party").
160. See LANDMAN & CARVALHO, supra note 29, at 128 ("[T]he measurement effort has
much work to do in finding solutions for measuring these three different state obligations.").
161. See Chapman, Development of Indicators,supra note 153, at 125; HELFER & AUSTIN,
supra note 19, at 321-22.
162.
See OHCHR, HUMAN RIGHTS INDICATORS: A GUllE TO MEASUREMENT AND
IMPLEMENTATION 89 (2012), https://www.ohchr.org/Documents/Publications/Human rights
indicators-en.pdf [https://perma.cc/825W-BLFY] (providing "[i]llustrative indicators on the
right to adequate food"); id. at 90 (providing "[i]llustrative indicators on the right to the
enjoyment of the highest attainable standard of physical and mental health"); id. at 93
(providing "[i]lustrative indicators on the right to education"); id. at 97 (providing illustrative indicators on "[t]he right to freedom of opinion and expression"); id. at 101 (providing
"[i]llustrative indicators on the right to life").
163. See Walker, supra note 153, at 325-27 (discussing the OHCHR indicator framework).
164. See Sally Engle Merry, The Potential of EthnographicMethods for Human Rights
Research, in RESEARCH METHODS HANDBOOK, supra note 29, at 141, 144 (criticizing this
typology for being less flexible than the respect-protect-fulfill framework used widely in the
international human rights system).
UNIVERSITY OF RICHMOND LAW REVIEW
1410
[Vol. 53:1375
standards. This process involves conceptualizing specific enumerated rights ... and developing standards by which to measure implementation or identify violations of state obligations." 1 6 5
A case in point is the challenge of measuring cultural rights,
which are particularly hard to define. Indeed, "[i]ssues of culture,
cultural values and cultural rights are often complex and fre6
quently touch on politically sensitive and contested issues." 16 It is
no wonder that Raymond Williams declared that "culture is one of
the two or three most complicated words in the English language."1 6 7
As far as the relationship between intellectual property and human rights is concerned, researchers can take quantitative assessments in two different directions. The first type of assessment concerns the human rights impact of intellectual property law and
policy. Drawing on comparative methods discussed in the previous
subpart, researchers can easily conduct cross-country comparisons
165. Chapman, Development of Indicators, supra note 153, at 111; see also Robert Justin
Goldstein, The Limitations of Using QuantitativeData in Studying Human Rights Abuses,
in HUMAN RIGHTS AND STATISTICS, supra note 29, at 35, 38 ("Quantitative data collection
requires a clear definition of the subject under study, but defining what are human rights
poses enormous difficulties."). As Todd Landman observed:
A social science that seeks to make human rights its main object of inquiry
must confront three significant and complementary challenges: (1) the absence
of agreed philosophical foundations for the existence of human rights and their
uncertain character, (2) contestation over the meaning and core content of human rights, and (3) the applicability of the social sciences to the study of human
rights.
Landman, supra note 127, at 21.
166. Chapman, Development of Indicators, supranote 153, at 132; see also Yvonne Donders, The Legal Framework of the Right to Take Part in Cultural Life, in HUMAN RIGHTS IN
EDUCATION, supra note 15, at 231, 232 ("The main reason for the underdevelopment of cultural rights is that the term 'culture' remains broad and vague, which has led to a lack of
consensus on which rights are 'cultural' and how to best implement them."); Lyndel V. Prott,
CulturalRights as Peoples'Rights in InternationalLaw, in THE RIGHTS OF PEOPLES 93, 95
(James Crawford ed., 1988) ("Th[e] different shades of meaning are often ignored in discussions of cultural rights, but their existence shows that any attempt to talk about cultural
issues in terms of rights may be slippery and difficult. Culture is not a static concept: cultures change all the time, and even the most enthusiastic supporter of cultural preservation
would no doubt find elements in the culture under consideration which no special effort
should be made to preserve."); Frans Viljoen, The Justiciabilityof Socio-Economic and CulturalRights: Experience and Problems, in HUMAN RIGHTS IN EDUCATION, supra note 15, at
53, 54 ("Delineating cultural rights is complex, in part because of the different understandings one may have of 'culture'.").
167.
RAYMOND WILLIAMS, KEYWORDS: A VOCABULARY OF CULTURE AND SOCIETY 87 (Ox-
ford Univ. Press rev. ed. 1985).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1411
of the human rights impacts of intellectual property laws and policies in multiple countries. 168 In doing so, they can demonstrate
whether stronger protection and enforcement of intellectual property rights has led to increases or decreases in human rights protections in the intellectual property area. Because changes in intellectual property law and policy rarely result in identifiable
"victims,"1 6 9 researchers will also need to think more about how to
measure the impact of these changes on human rights protection.
Before this line of research is undertaken, however, researchers
will have to determine not only which data or indicators best reflect
the levels of human rights protection, 170 but also what data sources
or indicators can reveal the actual levels of intellectual property
protection and enforcement.17 1 Commentators have widely used
the Ginarte-Park index to document the strength of an intellectual
property system. 17 2 Other indices that scholars and institutions
168. See LANDMAN, supranote 26, at 3 ("[Cjross-cultural generalizations are an essential
and inherent feature of human rights research since the international law of human rights
sets a universal ideal standard against which country performances and cultural contexts
are compared, and it is entirely possible to make cross-cultural generalizations if certain
basic rules of social science inquiry are observed." (citation omitted)).
169. Angelina Godoy observed the challenge of measuring the human rights impact of
intellectual property law and policy:
[Mleasuring intellectual property's impact is not as straightforward as it might
seem. Because IP rules delay the entrance of generic versions of new drugs,
their impact is only gradually felt as new drugs become available without generic alternatives. But no one is wresting pills out of poor patients' clenched
fists; dispassionate bureaucratic decisions mean prices will stay higher, longer,
but most patients will be given an older drug or prescribed an alternate therapy, rather than denied treatment altogether. There are likely to be patients
who receive a less than ideal therapy and programs for which there are fewer
funds because more is spent on medicines, but most likely there will never be
a quantifiable "body count."
GODOY, supra note 21, at 46; see also HARRISON, supra note 26, at 235 (calling for the development of "human rights indicators . . . with specific relevance to trade agreements and
their impacts").
170. See Yu, NonmultilateralEra, supra note 23, at 1097 n.237 (listing as helpful resources the U.N. indicators compiled by the United Nations Statistical Division, the International Human Development Indicators compiled by the United Nations Development Programme, and the World Development Indicators compiled by the World Bank). See generally
OHCHR, supra note 162 (providing a detailed guide on the development and use of human
rights indicators).
171. See Andreassen, supra note 126, at 242-43 ('To choose indicators that are apt proxies to the phenomenon a researcher wants to measure (do they measure what was expected)
is critical, but often problematic.").
172. See Juan C. Ginarte & Walter G. Park, Determinants of Patent Rights: A CrossNational Study, 26 RES. POL'Y 283 (1997) (providing an index of patent rights for 110 countries from the period 1960-1990). As they explained:
1412
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
have advanced are the U.S. Chamber International IP Index de173 the
veloped by the Chamber's Global Innovation Policy Center,
Global Intellectual Property Index provided by the international
law firm of Taylor Wessing, 174 and, most recently, the Intellectual
Property (Patent) Flexibility Index created by the late Elizabeth
Siew-Kuan Ng.1 75
The index was constructed for each of the 110 countries in the sample, quinquennially from 1960 to 1990, using a coding scheme applied to national patent
laws. Five categories of the patent laws were examined: (1) extent of coverage,
(2) membership in international patent agreements, (3) provisions for loss of
protection, (4) enforcement mechanisms, and (5) duration of protection. Each
of these categories (per country, per time period) was scored a value ranging
from 0 to 1 .... The unweighted sum of these five values constitutes the overall
value of the patent rights index. The index, therefore, ranges in value from
zero to five. Higher values of the index indicate stronger levels of protection.
Id. at 284 (footnote omitted); see also Walter G. Park & Juan Carlos Ginarte, Intellectual
Property Rights and Economic Growth, 15 CONTEMP. ECON. POL'Y 51, 51 (1997) (providing
an earlier study that covered only sixty countries from the same period).
173.
See U.S. CHAMBER OF COMMERCE GLOB. INNOVATION POLICY CTR., U.S. CHAMBER
INTERNATIONAL IP INDEX (2018), https://www.theglobalipcenter.com/wp-content/uploads/
2018/02/GIPCIPIndex_2018.pdf [https://perma.ccN9FR-8BGZ]. As the Center's latest report stated:
The Index consists of 40 indicators across 8 separate categories:
i) Patents, Related Rights, and Limitations;
ii) Copyrights, Related Rights, and Limitations;
iii) Trademarks, Related Rights, and Limitations;
iv) Trade Secrets and Related Rights;
v) Commercialization of IP Assets;
vi) Enforcement;
vii) Systemic Efficiency; and
viii) Membership in and Ratification of International Treaties.
Id. at 163.
174.
See TAYLOR WESSING, GLOBAL INTELLECTUAL PROPERTY INDEX: 5TH REPORT (2016),
https://united-kingdom.taylorwessing.com/documents/get/576/gipi5-report.pdf/show-on_sc
reen [https://perma.cc/5XDP-2BWZ]. As the firm's report explained:
The Global Intellectual Property Index (GIPI) provides a comprehensive assessment of how the intellectual property . .. regimes of 43 important jurisdictions compare with each other. The European Union is treated as an additional
jurisdiction in relation to IP rights that have been harmonised, i.e., trade
marks and designs.
Each IP right (patents, trade marks, designs and copyright) is assessed as
regards obtaining, exploiting, enforcing and attacking it. Each data protection
regime is measured against the criteria of fairness, enforcement, compliance,
administrative burden and disruption ....
Id. at 2.
175. This index "rank[s] thirty Asian countries according to the degree to which they
have implemented TRIPS patent flexibilities using five main indicators: namely, compulsory licensing, parallel importation, experimental/private noncommercial use, regulatory
review exception, and TRIPS-specific exclusions." Elizabeth Siew-Kuan Ng & Albert Guang-
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1413
Since the mid-1990s, researchers have also put together rankings based on subjective assessments made by industry representatives, intellectual property managers, academic researchers, and
all or some of the above. For instance, Edwin Mansfield conducted
for the World Bank a highly influential survey of 100 major U.S.
firms in six industries to explore the relationship between the respect for intellectual property rights and the flow of foreign direct
investments.1 7 6 Robert Sherwood also provided the ratings of
eighteen developing countries based on the effectiveness of their
intellectual property regime.17 7 In addition, WIPO released annual
data concerning different forms of intellectual property rights, including patents, utility models, trademarks, industrial designs,
plant varieties, and geographical indications. 178 All of these studies
have their strengths and shortcomings.
The second type of assessment concerns the protection of the human rights aspects of the right to the protection of the moral and
material interests resulting from intellectual production. Although
it is tempting to use the level of intellectual property protection
and enforcement as a proxy for such protection, researchers can
zhou Hu, Flexibilitiesin the Implementation of TRIPS: An Analysis of Their Impact on TechnologicalInnovation and Public Health in Asia, in FRAMING INTELLECTUAL PROPERTY LAW
IN THE 21ST CENTURY: INTEGRATING INCENTIVES, TRADE, DEVELOPMENT, CULTURE, AND
HUMAN RIGHTS 115, 118 (Rochelle Cooper Dreyfuss & Elizabeth Siew-Kuan Ng eds., 2018).
176. Edwin Mansfield, Intellectual Property Protection, Foreign Direct Investment and
Technology Transfer (Int'l Finance Corp., Discussion Paper No. 19, 1994). These six industries included "chemicals (including drugs), transportation equipment, electrical equipment,
machinery, food and metals." Id. at 1.
177. Robert M. Sherwood, Intellectual Property Systems and Investment Stimulation:
The Rating of Systems in Eighteen Developing Countries, 37 IDEA J.L. & TECH. 261 (1997).
As Sherwood explained:
This study presents a numerical rating system by which national intellectual
property regimes may be both assessed and compared. The rating system examines regime effectiveness from the perspective of private investment stimulation, particularly national private investment. This system, in turn, may provide a basis for assessing the contribution which intellectual property
protection makes to the process of economic development.
Id. at 261. Among the metrics used were enforceability, administration, substantive law
(copyright, patents, trademarks, trade secrets, and life forms), treaties, and public commitment. Id. at 265. Similar estimates have been undertaken by other researchers. See, e.g.,
Belay Seyoum, The Impact of Intellectual Property Rights on Foreign Direct Investment,
COLUM. J. WORLD BUS., Spring 1996, at 51, 56 (estimating the level of protection for patents,
trademarks, trade secrets, copyrights in twenty-eight countries).
178.
See WIPO, WORLD INTELLECTUAL PROPERTY INDICATORS 2018 (2018), https://www.
wipo.intledocs/pubdoes/en/wipo pub 941_2018.pdf [https://perma.cc/4E5T-JT5L]
ing these data).
(provid-
1414
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
consider devoting greater attention to changes in the income of authors and inventors. 179 As General Comment No. 17 stated, the
right to the protection of the moral and material interests resulting
from intellectual production seeks to protect the "material interests which are necessary to enable authors to enjoy an adequate
standard of living."18 0 A close scrutiny of their income will certainly
shed light on whether individual authors and inventors have received adequate protection for this specific right.
To be sure, quantitative assessment alone may not reveal the
complete picture, whether in terms of the human rights impacts of
intellectual property rights or the protection for the human rights
aspects of intellectual property rights. As Robert Goldstein observed, "[e]ven if human rights terms can be adequately defined
and reliable quantitative information can be obtained, making intelligent assessments of such data will often be extraordinarily difficult, especially if the data are interpreted out of the context of
other, nonquantitative sources, such as interviews, on-the-spot observation, and background reading." 18 1 As a result, researchers
may want to supplement their quantitative assessments with qualitative analyses,1 8 2 such as those provided through structured,
179. For some of these studies, see Martin Kretschmer, Artists'Earningsand Copyright:
A Review ofBritishand GermanMusic Industry Data in the Context ofDigital Technologies,
FIRST MONDAY, Jan. 2005, http://www.firstmonday.org/ojs/index.php/fm/ article/view/1200/
1120 [https://perma.ccl78R6-YQYK]; Martin Kretschmer, Does Copyright Law Matter? An
Empirical Analysis of Creators' Earnings (May 21, 2012), https://ssrn.com/abstract=20
63735 [https:/perma.cc/J8Z6-9CH5]; Martin Kretschmer et al., Copyright Contracts and
Earnings of Visual Creators: A Survey of 5,800 British Designers, Fine Artists, Illustrators
and Photographers (Mar. 7, 2011), https://ssrn.com/abstract=1780206 [https://perma.cc/
VVS9-VTWK].
180. General Comment No. 17, supra note 8, 1 2.
181. Goldstein, supra note 165, at 49.
182. See Laura Ferguson, Assessing Work at the Intersection of Health and Human
Rights: Why, How and Who?, in RESEARCH METHODS HANDBOOK, supra note 29, at 408, 415
("Assessing a country's compliance with its human rights commitments can be done based
on both quantitative and qualitive evidence produced through studies and reports. Assessing how human rights impact health also requires a mix of quantitative and qualitative
data."); LANDMAN, supra note 26, at 71-72 ("Quantitative methods seek to show differences
in number between certain objects of analysis and qualitative methods seek to show differences in kind. . .. [Tihere have been important and significant methodological developments
in combining the strengths of qualitative and quantitative techniques by recognizing that
both methods are founded on the same logic of inference and linking qualitative distinctions
to quantitative representation."); Langford, supra note 156, at 176-80 (exploring the "quantitative vs qualitative divide"); McConnell & Smith, supra note 124, at 159 ("In human
rights, [qualitative and quantitative methods] can be used independently, but often both are
used, with qualitative methods being used to deepen understanding of the data reached
after a quantitative analysis. Qualitative data can often 'soften' the perceived bluntness of
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1415
semi-structured, and in-depth interviews. 18 3 The two latter types
of interviews will be particularly helpful in facilitating follow-up
inquiries that seek to illuminate quantitative findings.
statistical data by providing further explanation for the statistics."); Shaffer & Ginsburg,
supra note 149, at 4 ("Qualitative work ... offers the advantage of paying closer attention
to dynamic social contexts, as it often involves field work and interviews."). But see Goldstein, supra note 165, at 37 (cautioning against "overreliance on quantitative data and approaches").
183. Maria Stuttaford explained the distinctions between these various data collection
techniques:
The first method of data collection to be employed in the research is a survey
generating mainly quantitative data with a limited number of open ended
questions.... Semi-structured interviewing takes place when set questions
are asked but not in any particular order.... While semi-structured interviews
focus on the individual, focus group interviews are particularly useful for eliciting views on a specific collective topic, such as rights to health. . . . In-depth
interviews are particularly useful for engaging with people with regard to
meanings of phenomena. In the research on health and human rights, in-depth
interviews as narrative may improve the focus and rigour of data, compared to
the first two studies.
Maria Stuttaford, Methods in Health and Human Rights Research: Towards a Spiral of CoLearning, in METHODS OF HUMAN RIGHTS RESEARCH, supra note 29, at 135, 154; see also
Dimitrina Petrova, ResearchingDiscrimination,in RESEARCH METHODS HANDBOOK, supra
note 29, at 379, 389 ("There are various kinds of interview: structured (based on a rigorous
questionnaire), semi-structured (following pre-ordered themes but allowing for deviation
based on respondent's answers) and exploratory (investigating a certain issue and lacking
a preliminary plan, guided by the need to establish facts, as when researching a specific
incident)."); Smith & McConnell, supra note 128, at 4 ("Often such data will be collected
through interviews. These may be structured or semi-structured, depending on the research
questions and the time available and scope of the research. Data can also be collected
through face-to-face interviewing or through a more remote survey of some type."); Rhona
Smith & Lorna Smith, Qualitative Methods, in RESEARCH METHODS IN HUMAN RIGHTS, supra note 29, at 70, 72-79 (discussing interviews, surveys, focus groups, and case studies).
Research in the area of intellectual property and human rights is generally not as sensitive as research conducted in other areas of human rights protection, such as those relating
to genocide, torture, or abuse of women's rights. Nevertheless, issues involving suffering or
deaths resulting from a lack of access to essential medicines or the systemic failure to protect traditional knowledge and cultural expressions can be highly sensitive and emotionally
charged. See id. at 83 ("Human rights research often involves particularly vulnerable people."); George Ulrich, Research Ethics for Human Rights Researchers, in RESEARCH
METHODS HANDBOOK, supra note 29, at 192, 192 ("Research in the area of human rights,
like human rights practice, invariably concerns issues that in one way or another are sensitive and charged."). It is therefore no surprise that "[mlany international professional organizations (e.g., Bar Associations), civil society organisations and non-governmental organisations have their own guidelines for gathering information on human rights
violations." Smith, supra note 103, at 10. See generally Ulrich, supra (discussing the ethics
of conducting human rights research).
1416
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
C. ContextualAnalyses
Commentators have increasingly embraced the "human rights
in context" approach, which "advocates placing human rights and
law in their natural setting, considering a range of factors including historical, cultural, religious and social-economic." 184 The use
of contextual analyses is understandable given the considerable
variations of human rights protection from right to right, country
to country, and discipline to discipline. While human rights discussions are frequently framed in terms of absolutes, reality does call
for greater recognition of the varying levels of human rights protection. Even among developed countries, significant variations exist with respect to the protection of different human rights. 185 As a
result, "[s]tates and rights holders both need an understanding of
law in context to maximise the opportunity for human rights to be
18 6
meaningfully realised in the state."
To some extent, human rights are contextually contingent on the
factors relating to the local protective environment. 187 As a result
of this contextual contingency, researchers can glean important insights from analyzing issues through different disciplinary
lenses.1 8 8 For example, studying the right to the protection of the
184. Smith & McConnell, supra note 128, at 3; see also Smith, supra note 103, at 12 ("A
human rights based approach to research means researching human rights issues with due
consideration as to the surrounding circumstances. This can mean ensuring an appropriate
historical, cultural, religious, legal and political understanding of the issues which shape
the subject.").
185. In the United States, the protection for civil and political rights tends to be stronger
than the protection for social, economic, and cultural rights. See generally CASS R.
SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR's UNFINISHED REVOLUTION AND WHY WE
NEED IT MORE THAN EVER (2004) (discussing the protection of the latter set of rights and
the lack thereof).
186. Smith & McConnell, supranote 128, at 3.
187.
See JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE 1 (2d ed.
2003) ("[Alny list or conception of human rights-and the idea of human rights itself-is
historically specific and contingent."); Ellen Dorsey, Charter Making and ParticipatoryResearch, in HUMAN RIGHTS EDUCATION, supranote 32, at 119, 124 (drawing on Richard Falk's
research to point out that most other human rights "are necessarily contextually (that is not
to say, hierarchically) contingent"); Farran, Comparative Approaches, supra note 128, at
141 ("[The economic and political environment in which the law operates is important and
may be particularly relevant in the case of human rights, especially second generation
rights.").
188. See Andreassen et al., supra note 31, at 5 ("Human rights are not only the subjects
of legal obligations, they are also moral norms, with political content and social, cultural,
anthropological and economic implications."); Langford, supra note 156, at 161-62 ("While
temporal disciplinary monopolies and methodological paradigm wars have marked the field,
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1417
moral and material interests resulting from intellectual production
in its historical context18 9 will help researchers focus attention on
the slow but active evolution of human rights protection in the past
few decades. For a human rights instrument that was adopted
seven decades ago, such as the UDHR, evolutive interpretation can
be quite important. 190 As Professors Helfer and Austin observed:
Human rights law and intellectual property law are both famously
dynamic, readily adapting to changing circumstances through new
rounds of treaty making, interpretations by international tribunals,
and revisions of national laws. A framework that privileges the original understanding of Articles 27 and 15 fails to engage with this dynamism and with the evolutions in law, politics, social values, and
technology that engendered these adaptations. 19 1
Likewise, Maria Green observed in her widely cited study of the
drafting history of Article 15(1)(c) of the ICESCR:
In the context of modern human rights issues, articles 15(1)(b) and
15(1)(c) of the ICESCR raise very real questions of interpretation and
implementation. We face a world with issues that the drafters of the
ICESCR could never have envisaged, from an AIDS epidemic reigning
in one part of the world while the drugs that could help are largely
owned in another, to scientifically engineered non-reproducing crops,
to scientists "bio-prospecting" for traditional knowledge whose ownership does not fit into existing patent definitions. Then, too, with the
recent tying of intellectual property to trade law, international intel-
human rights research has gradually embraced the pluralistic turn.... [Human rights] is
neither a discipline nor delimited by a single discipline; and it is both a research subject
(internally determined) and research object (externally observed). This applies to academic
scholarship but also to research in human rights practice."); Smith, supra note 103, at 22
("Human rights is inevitably interdisciplinary and research on it can be interdisciplinary or
even multidisciplinary.").
189.
See Farran, ComparativeApproaches, supra note 128, at 140 ("A ...
caveat when
comparing legal systems or parts of legal systems is the need to be aware of the influence of
the historical past."); Smith, supra note 103, at 12 ("Human rights research can benefit from
historical approaches to research. Understanding why things are as they are, learning from
past experiences of a situation, identifying trends and providing perspectives on current
issues are examples of the richness historical approaches can bring to human rights research.").
190.
See Audrey R. Chapman & Sage Russell, Introduction to CORE OBLIGATIONS, supra
note 36, at 1, 13 ("[H]uman rights standards evolve over time and in the direction of expansiveness."); DONNELLY, supra note 187, at 1 (noting that human rights are far from "time-
less, unchanging, or absolute; any list or conception of human rights-and the idea of human
rights itself-is historically specific and contingent"); see also M. MAGDALENA SEPTJLVEDA,
THE NATURE OF THE OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS 81-84 (2003) (discussing the evolutive interpretation of hu-
man rights treaties).
191.
HELFER & AUSTIN, supra note 19, at 507.
UNIVERSITY OF RICHMOND LAW REVIEW
1418
|Vol. 53:1375
lectual property rights have undergone a sea-change, becoming universal, compulsory, and enforceable in ways that were never dreamt
of in the middle of the last century. 192
A case in point concerns the protection for traditional knowledge
and traditional cultural expressions. Commentators have widely
noted that the drafters of the UDHR and the ICESCR did not pay
much attention to issues relating to minorities. 19 3 As a result, both
instruments do not offer strong protection to traditional knowledge
and traditional cultural expressions. As General Comment No. 17
noted, by using words such as "everyone," "he," and "author," "the
drafters of [Article 15(1)(c) of the ICESCRI seemed to have believed
authors of scientific, literary or artistic productions to be natural
persons, without at that time realizing that they could also be
groups of individuals." 194
In September 2007, however, the Declaration on the Rights of
Indigenous Peoples was adopted, and the situation changed dramatically. Article 31 of this new instrument specifically provides:
"Indigenous peoples have the right to maintain, control, protect
and develop their cultural heritage, traditional knowledge and traditional cultural expressions .
.
.. They also have the right to main-
tain, control, protect and develop their intellectual property over
such cultural heritage, traditional knowledge, and traditional cultural expressions."1 95 This provision is consistent with paragraph
32 of General Comment No. 17, which declares: "States parties
should adopt measures to ensure the effective protection of the interests of indigenous peoples relating to their productions, which
are often expressions of their cultural heritage and traditional
knowledge." 196
Apart from historical research, economic analyses can also help
enhance our understanding of the interplay between intellectual
192.
Maria Green (Director, Int'l Anti-Poverty Law Ctr.), DraftingHistory of the Article
15(1)(c) of the InternationalCovenant on Economic, Social and Cultural Rights, 1 44, U.N.
Doc. E/C.12/2000/15 (Oct. 9, 2000).
193. See MORSINK, supra note 71, at 269-80 (showing why historical memories, political
circumstances, concerns of the colonial powers, and the lack of political organization had
caused the UDHR drafters to omit a provision on the right to protect minorities); Yu, Reconceptualizing Intellectual Property Interests, supra note 18, at 1144-45 (discussing how the
drafters of both the UDHR and the ICESCR did not have indigenous communities in mind
when they drafted the documents).
194. General Comment No. 17, supra note 8, T 7 (footnote omitted).
195. UNDRIP, supra note 46, art. 31(1).
196. General Comment No. 17, supra note 8, ¶ 32.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1419
property and human rights. Such analyses are especially significant in view of the different economies covered by the TRIPS
Agreement and TRIPS-plus bilateral, regional, and plurilateral
trade agreements. Variations in economic conditions affect not only
human rights protection, but directly impact the levels of intellectual property protection and enforcement. These variations, in
turn, affect the tensions and conflicts between human rights and
intellectual property rights.
Consider, for instance, the protection of intellectual property
rights in least developed countries. At its inception, the TRIPS
Agreement granted to these countries a transition period of ten
years, 197 which was extended in November 2005 to seventeen and
a half years.198 Thanks to a June 2013 decision of the Council for
Trade-Related Aspects of Intellectual Property Rights, this transition period has been extended yet again for another eight years to
July 1, 2021.199 In the area of pharmaceuticals, least developed
countries can further delay protection for patents and undisclosed
test data until January 1, 2033.200 In short, the standards of intellectual property protection vary according to a country's economic
strength, not to mention the additional impact of resource constraints on its overall ability to enforce intellectual property
rights. 201
Moreover, just as resource constraints can affect the level of intellectual property protection and enforcement, they can also impact the protection and full realization of the human rights concerned. Article 22 of the UDHR states that "the economic, social
and cultural rights indispensable for [one's] dignity and the free
197. See TRIPS Agreement, supra note 39, art. 66.1 (providing the transition period for
least developed countries).
198. Council for Trade-Related Aspects of Intellectual Property Rights, Extension of the
Transition Period Under Article 66.1 for Least-Developed Country Members, WTO Doc.
IP/C/40 (Nov. 30, 2005).
199. Council for Trade-Related Aspects of Intellectual Property Rights, Extension of the
Transition Period Under Article 66.1 for Least Developed Country Members, WTO Doc.
IP/C/64 (June 12, 2013).
200. Council for Trade-Related Aspects of Intellectual Property Rights, Extension of the
Transition Period Under Article 66.1 of the TRIPS Agreement for Least Developed Country
Members for Certain Obligations with Respect to Pharmaceutical Products, WTO Doc.
IP/C/73 (Nov. 6, 2015).
201. See Yu, Enforcement, Economics and Estimates, supra note 145, at 2-6 (discussing
the costs of strong intellectual property enforcement norms and the resulting trade-offs).
1420
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
development of his [or her] personality" are to be realized "in ac-
20 2
cordance with the organization and resources of each State."
Likewise, Article 2(1) of the ICESCR provides:
Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate
203
means, including particularly the adoption of legislative measures.
In an earlier article, I advanced the progressive realization approach to address the fact that countries may not initially have
sufficient resources to offer protection beyond their minimum core
obligations. 2 04 Under the ICESCR, contracting parties are required
to provide the "minimum essential levels" of protection of all of the
human rights covered.205 Once they have satisfied these minimum
core obligations, they have to take "deliberate, concrete and targeted" steps toward the full realization of the rights covered.206
Finally, it may be useful to examine human rights protection in
relation to the changing technological contexts. With the arrival of
the Internet and other new communications technologies, new
questions about human rights protection have arisen, and will continue to emerge. 207 If we are to properly understand the human
202. UDHR, supra note 1, art. 22.
203. ICESCR, supra note 9, art. 2(1).
204. See Yu, ReconceptualizingIntellectualProperty Interests, supra note 18, at 1113-23
(advancing the progressive realization approach).
205. See Comm. on Econ., Soc. & Cultural Rights, General Comment No. 3: The Nature
of States Parties Obligations (Art. 2, Par. 1), 1 10, U.N. Doe. E/1991/23 (Dec. 14, 1990) [hereinafter General Comment No. 3] ("[A] minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights is incumbent upon every
State party."); see also Chapman & Russell, supra note 190, at 9 (defining "minimum essential levels" as "the essential element or elements without which [a right] loses its substantive significance as a human right and in the absence of which a State party should be considered to be in violation of its international obligations").
206. General Comment No. 3, supra note 205, 1 2; see also ICESCR, supra note 9, art.
2(1) (requiring each state party "to take steps ... to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption of legislative measures"); MATTHEW C.R. CRAVEN, THE INTERNATIONAL COVENANT ON EcoNOMIC,
SOCIAL, AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT 136-44 (1995) (dis-
cussing the phrase "to the maximum of its available resources" in the ICESCR).
207. See Land, Toward an InternationalLaw, supra note 24, at 399 ("[T]he human rights
protections that apply generally to all restrictions on freedom of expression and information
apply equally to communication and the exchange of information online.").
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1421
rights aspects of intellectual property rights, we will need to develop a better understanding of how human rights are to be protected in changing technological contexts.
The need for such an understanding does not mean that human
rights protection should vary according to technological environments. Rather, the changing contexts remind us that human rights
obligations may be realized through different means. After all, international and regional human rights instruments rarely mandate specific modalities for protecting the human rights concerned.
In earlier works, I discussed how this right can be protected by
other models, such as "grants, subsidies, prizes, advance market
commitments, reputation gains, open source drug discovery, patent pools, and public-private partnerships." 2 0 8
Because of the limited space available, this part does not have
room to provide illustrations from political science, sociology, cultural studies, and other disciplines. Nevertheless, it is worth recalling that human rights research is interdisciplinary by nature. 209 As such, it can be enriched by insights gleaned from a broad
array of disciplines. The need for inter- and multi-disciplinary
learning and research is indeed the reason why contextual analyses are highly important in the area of intellectual property and
human rights.
D. Summary
This part has highlighted the emergence of a growing body of
scholarship on human rights methods and methodology. It has also
208. Yu, NonmultilateralEra, supra note 23, at 1077-78; Yu, Anatomy, supra note 18,
at 62-63; see also Special Rapporteur'sReport on PatentPolicy, supra note 17, 1 57 ("Alternative mechanisms have long existed alongside patents to stimulate research. These include
tax incentives for corporate investments in research and development, public funding for
scientific research, government purchasing, prize competitions and advance market commitments."); Rochelle Cooper Dreyfuss, Patents and Human Rights: Where Is the Paradox?,
in APARADOX, supra note 20, at 81 ("Other methods of assuring payment include lead time
advantages, government or private contracts and research grants, contests, bonuses, prizes,
tenure, and professorial chairs."); GENE PATENTS AND COLLABORATIVE LICENSING MODELS:
PATENT POOLS, CLEARINGHOUSES, OPEN SOURCE MODELS AND LIABILITY REGIMES (Geertrui
Van Overwalle ed., 2009) (collecting articles that discuss patent pools, clearinghouses, open
source models, and liability regimes); INCENTIVES FOR GLOBAL PUBLIC HEALTH: PATENT
LAW AND ACCESS TO ESSENTIAL MEDICINES 133-283 (Thomas Pogge et al. eds., 2010) (collecting articles that discuss prizes, patent pools, and open source drug discovery).
209. See supra note 188 (collecting sources that highlight the interdisciplinarity of human rights research).
&
1422
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
shown that many different methods can be used to support research on intellectual property and human rights. At the outset, it
is worth remembering that none of the research methods discussed
in this article or elsewhere in the methodological literature would
be superior. Whether one method will work better than the others
will depend on the research tasks at hand, the researcher's background, experience and interests, the duration of the research pro210
ject, and funding and other resources available for that project.
Moreover, researchers have increasingly deployed multiple
methods to conduct human rights research. 2 11 As Fons Coomans,
Fred Grtihfeld, and Menno Kamminga observed:
There is .. . not a single, preferred research method. There also is no
typical, preferred method for carrying out research in the field of human rights. The method chosen to answer a given research question
may, for example, be quantitative or qualitative, inductive or deductive, a case study or an attempt to draw general conclusions, covering
just one country or comparing more countries, be based merely on
written sources ("desk top research") or on field study and interviews.
210. See Andreassen, supra note 126, at 238 ('The methodological choices that any researcher has to make are informed by research questions, theories applied and the epistemological orientation of the researcher."); Andreassen et al., supra note 31, at 4 ('The choice
of methods depends on the research question posed."); Coomans et al., supra note 123, at 15
('The method chosen for a research project should follow logically from the project's research
question. It may also depend on such practical considerations as the information, the financial resources and the time that is available, as well as the qualifications of the researcher.");
Landman, supra note 127, at 41 ("[T]here is not one preferred [research] method, since
method is a function of the epistemological orientations of the researcher, the theoretical
perspective that is adopted, the nature of the research question, as well as the available
time and material resources with which to carry out any research project."); McConnell
Smith, supra note 124, at 163-64 ("[Research choices] may be influenced by who is commissioning the research, the purpose of the research and/or the practicalities of the resources
available-money, staff and so on. . . .In human rights research, the choice of methods may
[also] be influenced by the intended recipient of the research.").
211. As Rhona Smith and Lee McConnell observed:
While certain combinations of methods will be more compatible than others, it
is clear that methods in human rights research rarely operate in a vacuum.
Instead, researchers are often prone to adopt a mixed approach, where different methods are blended to ensure the research questions are fully addressed,
or to account for certain sub-questions, the answers to which are relevant to
the understanding of the research area as a whole. This can produce more credible results as a degree of "testing" is inbuilt by using a second or third method
to corroborate or crosscheck findings, or to reach a more holistic, deeper understanding of the field of study with which the primary research question is concerned.
McConnell & Smith, supra note 124, at 150.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1423
A combination of methods, if expertly employed, may of course produce more reliable results. 212
The research methods discussed in this article, for instance, are
not mutually exclusive. Part II.B noted the benefit of combining
comparative methods with quantitative assessments to provide
cross-country analyses of the human rights aspects of intellectual
property rights. Part II.C further suggested that comparative
methods and quantitative assessments can be utilized to analyze
human rights in specific contexts. Combining all three types of research methods would help yield a holistic examination of the interrelationship between intellectual property and the specific human rights involved.
The goal of this part is not to provide a comprehensive discussion
of all the different methods that can be used to conduct research
on intellectual property and human rights. Rather, it is to call on
researchers to pay greater attention to the methods used. In doing
so, these researchers will be better positioned to recognize the
strengths and weaknesses of their chosen methods. They will also
be able to explore further whether those methods have unduly influenced the outcome of their analyses. In some circumstances, it
will indeed be helpful to explain not only why the researchers have
chosen specific methods, but also why they have not used other
equally valid and applicable methods. 213
It is my hope that a greater emphasis on methodological rigor
will lead to new and more robust research on intellectual property
and human rights. In doing so, scholars in this intersectional area
will be able to build on the past two decades of scholarship to push
212. Coomans et al., supra note 123, at 15; see also Andreassen, supra note 126, at 238
("In principle, there is no one preferred method in comparative research."); Andreassen et
al., supra note 31, at 4 ("Among generally recognized methods, no single method is 'better'
than others, although disagreement about the robustness of results arising from different
methods certainly exists."); Langford, supra note 156, at 161 ("[H]uman rights constitutes
a natural field for interdisciplinary endeavour and methodological heterogeneity."); Smith
& McConnell, supra note 128, at 5 ("Any single method has its limitations and strengths.
Different research questions and different funders require different methods to be used.
Perhaps unsurprisingly, a lot of human rights research thus follows a mixed approach.").
213. See Coomans et al., supra note 123, at 15-16 ("The description of the method
adopted should also discuss which alternative methods have been considered and why these
have been rejected. The purpose here is to demonstrate that the researcher has reflected on
the proper method of research for the project and has made a choice that is justifiable."); see
also McConnell & Smith, supra note 124, at 164 ("Mixing methods can be trial and error,
but there remains a need for careful forethought, planning and a logical narrative to ensure
that the question or phenomenon is explored in the best way.").
1424
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
for new research frontiers. Greater methodological rigor and curiosity will also help expand the toolbox now available to researchers
in the area of intellectual property and human rights. 2 1 4
III. WHY STUDY INTELLECTUAL PROPERTY AND HUMAN RIGHTS?
The previous part has discussed three methods that have been
widely used to conduct research on intellectual property and human rights. That discussion has made implicit the assumption that
undertaking research in this area is important. The logical followup question, then, is: Why do we need to conduct such research in
the first place? This inquiry is similar to the usual question posed
to human rights educators concerning why they study human
rights. Because a growing literature already exists on human
rights education, 215 this part does not attempt to answer this broad
question. Instead, it narrows the inquiry's focus to the area of intellectual property and human rights. This part further outlines
the various contributions a robust debate in this area can provide
to the intellectual property regime, the human rights regime, and
the interface between these two regimes.
A. Intellectual Property
For many policymakers and commentators in the intellectual
property field, especially those alarmed by the fundamental conflicts between human rights and intellectual property rights, the
answer to the "why" question begins with the important limits human rights have placed on the protection and enforcement of intellectual property rights. In the copyright area, the right to freedom
of opinion and expression restrains the overzealous protection and
enforcement of intellectual property rights. As the United States
214. See McConnell & Smith, supranote 124, at 164 ("Ultimately, human rights research
methods can best be viewed as a toolbox-the more methods and approaches available, the
easier it is to select the best options for a particular project."); see also Andreassen et al.,
supra note 31, at 4 ('Training in methods is essentially about building skills to develop robust research questions and make good choices about which method or methods to use, and
how to apply the methods effectively once chosen. It also entails training in understanding
how those choices relate to particular paradigms, values or theoretical premises.").
215. See supra note 32 (collecting sources that discuss human rights education).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1425
Supreme Court noted in Eldred v. Ashcroft,2 16 the First Amendment provides the much-needed "built-in ... accommodations" to
ensure a well-functioning copyright system. 2 17
In the patent area, the right to life and the right to health, like
the right to freedom of opinion and expression, have also provided
important external constraints, 2 18 especially in relation to fostering access to medicines and medical technologies. 2 19 To address the
public health pandemics in Sub-Saharan Africa, WTO members
agreed to develop the so-called "Paragraph 6" solution to enable
countries with insufficient or no manufacturing capacity to import
216. 537 U.S. 186 (2003).
217. Id. at 219-20; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
(noting "the fair use doctrine's guarantee of breathing space within the confines of copyright").
218. See Geertrui Van Overwalle, Human Rights' Limitations in Patent Law, in A
PARADOX, supra note 20, at 236 (discussing the human rights limitations in patent law); see
also Carlos M. Correa, Mitigating the Impact of Intellectual Property in Developing Countries Through the Implementation of Human Rights, in RESEARCH HANDBOOK, supra note
20, at 201 (discussing the use of human rights obligations to mitigate the impact of high
intellectual property standards in developing countries); Christophe Geiger, Fundamental
Rights, A Safeguard for the Coherence of Intellectual PropertyLaw?, 35 INT'L REV. INTELL.
PROP. & COMPETITION L. 268, 278 (2004) ("[Fundamental rights] can serve as a corrective
when the rights are used excessively and contrary to their functions.").
219. See, e.g., Obijiofor Aginam, Communitarian Globalism and Disease:A Normative
Orientation for Global Health Governance, in THE GLOBAL GOVERNANCE OF HIV/AIDS:
INTELLECTUAL PROPERTY AND ACCESS TO ESSENTIAL MEDICINES 14, 19-21 (Obijiofor Agi-
nam, John Harrington & Peter K. Yu eds., 2013) [hereinafter GLOBAL GOVERNANCE OF
HIV/AIDS] (discussing the "human rights versus intellectual property rights" debate);
CARLOS CORREA & DUNCAN MATTHEWS, THE DOHA DECLARATION TEN YEARS ON AND ITS
IMPACT ON ACCESS TO MEDICINES AND THE RIGHT TO HEALTH (2011), http://www.
undp.org/content/undp/en/homellibrarypage/hiv-aids/dohalOyearson.html [https://perma.cc
/G87X-UZHE] (discussing the impact of the Doha Declaration on the TRIPS Agreement and
Public Health on access to medicines and the right to health); James Harrison, Trade Agreements, Intellectual Property and Access to Essential Medicines: What Future Role for the
Right to Health?, in GLOBAL GOVERNANCE OF HIV/AIDS, supra, at 87 (discussing the role of
right to health in HIV/AIDS governance); Duncan Matthews, Intellectual PropertyRights,
Human Rights and the Right to Health, in A PARADOX, supra note 20, at 118 (examining the
tensions between intellectual property rights, human rights, and the right to health); Duncan Matthews, Right to Health and Patents, in RESEARCH HANDBOOK, supra note 20, at 496
(mapping the rights-based discourse on the interface between the right to health and patents); Lisa Forman, 'Rights"and Wrongs: What Utility for the Right to Health in Reforming
Trade Rules on Medicines?, 10 HEALTH & HUM. RTS. 37, 37 (2008) ("[The AIDS medicine
experience and the seminal corporate litigation in South Africa in 2001, in particular, point
to the transformative potential of the right to health to raise the priority of public health
needs in trade-related intellectual property rights, and to advance access to critical health
interventions in resource-poor settings."); Ruth L. Okediji, Does Intellectual Property Need
Human Rights?, 51 N.Y.U. J. INVL L. & POL., 1, 8 (2018) [hereinafter Okediji, Human
Rights] ("[I]n the context of the right to health, this linkage has considerable merit when
considering the importance of these actors to outcomes such as the Doha Declaration, as
well as other ongoing gains in the area of access to essential medicines." (footnote omitted)).
1426
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
generic versions of patented pharmaceuticals. 22 0 This solution
eventually became the proposed Article 31bis of the TRIPS Agreement, 221 which was adopted in January 2017 after it had been
opened for ratification for more than a decade. 222
The second contribution is that a robust discourse on human
rights in the intellectual property area will help develop a better
understanding of the nature of intellectual property rights. This
discourse will show that these rights are not self-evident by nature. 2 2 3 Oftentimes, the intellectual property system grants protection based on demands from intellectual property industries and
their powerful and supportive governments. 224 As a result, the
level of protection provided by intellectual property laws are
220. See General Council, Implementation of Paragraph6 of the Doha Declarationon the
TRIPS Agreement and Public Health, WTO Doc. WT/L/540 (Sept. 1, 2003); World Trade
Organization, Declaration on the TRIPS Agreement and Public Health, WTO Doc.
WT/MIN(01)/DEC/2, 41 I.L.M. 755, 756 (2002) (recognizing that "WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in
making effective use of compulsory licensing under the TRIPS Agreement"); Peter K. Yu,
The InternationalEnclosure Movement, 82 IND. L.J. 827, 872-86 (2007) (discussing the Doha
Declaration, the August 30 decision of the Council for Trade-Related Aspects of Intellectual
Property Rights, and the proposed Article 31bis of the TRIPS Agreement).
221. General Council, Amendment of the TRIPS Agreement, WTO Doc. WTIL/641 (Dec.
8, 2005).
222. See Press Release, World Trade Org., WTO IP Rules Amended to Ease Poor Countries' Access to Affordable Medicines (Jan. 23, 2017), https://www.wto.org/english/news
.e/newsl7_e/trip_23janl7e.htm [https://perma.cc/5TVS-FXZD] (announcing that the proposed Article 31bis entered into force).
223. See ROSEMARY J. COOMBE, THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES:
AUTHORSHIP, APPROPRIATION, AND THE LAW 247 (1998) ("The range of Western beliefs that
define intellectual and cultural property laws . .. are not universal values that express the
full range of human possibility, but particular, interested fictions emergent from a history
of colonialism that has disempowered many of the world's peoples."); William P. Alford, How
Theory Does-and Does Not-Matter: American Approaches to Intellectual Property Law in
East Asia, 13 UCLA PAC. BASIN L.J. 8, 17 (1994) ("[F]ar from being universal, it is the ideas
of ownership embedded in modern Western intellectual property that are the historical aberrations, and that these ideas have achieved the currency they now enjoy internationally
as much because they are backed by great economic might as because of their appeal to our
common sense or their innate conceptual force."); Peter K Yu, From Pirates to Partners:
ProtectingIntellectualProperty in China in the Twenty-First Century, 50 AM. U. L. REV. 131,
235 (2000) ("Adherents of the realist theory of international relations will find even more
unconvincing the argument that the Western intellectual property regime represents universal values.").
224.
See generally DUNCAN MATTHEWS, GLOBALISING INTELLECTUAL PROPERTY RIGHTS:
THE TRIPS AGREEMENT (2002) (examining the role of the industries in the TRIPS negotiations); SUSAN K. SELL, PRIVATE POWER, PUBLIC LAW: THE GLOBALIZATION OF INTELLECTUAL
PROPERTY RIGHTS 96-120 (2003) (discussing the role of the Intellectual Property Committee
in pushing for the adoption of high intellectual property standards in the TRIPS Agreement).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1427
higher, and often much higher, than the levels required by international or regional human rights instruments. As I noted in earlier articles, as far as the protection of material interests is concerned, the UDHR and the ICESCR merely require that authors
be "enable[d] . . . to enjoy an adequate standard of living." 225 General Comment No. 17 further underscored the considerable difference between what is protected under the ICESCR and what is
protected under international trade and intellectual property
agreements:
Whereas the human right to benefit from the protection of the moral
and material interests resulting from one's scientific, literary and artistic productions safeguards the personal link between authors and
their creations and between peoples, communities, or other groups
and their collective cultural heritage, as well as their basic material
interests which are necessary to enable authors to enjoy an adequate
standard of living, intellectual property regimes primarily protect
business and corporate interests and investments. Moreover, the
scope of protection of the moral and material interests of the author
provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements. 226
Even if human rights obligations do require the protection of
some of the existing intellectual property rights, or some aspects of
those rights, these obligations do not extend to all of those rights,
or all aspects of those rights. 227 Nor do human rights obligations
225. General Comment No. 17, supra note 8, ¶ 2; see also CRAVEN, supra note 206, at
287-351 (discussing the "right to an adequate standard of living"); HELFER & AUSTIN, supra
note 19, at 189 (noting that "material interests" in the right to the protection of the moral
and material interests resulting from intellectual production "are ... tied to the ability of
creators to enjoy an adequate standard of living"); cf. ICESCR, supranote 9, art. 11(1) (recognizing "the right of everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous improvement of living
conditions").
226. General Comment No. 17, supra note 8, ¶ 2; see also Helfer, Human Rights Framework, supra note 18, at 996 (noting that General Comment No. 17 suggested "the existence
of an irreducible core of rights-a zone of personal autonomy in which authors can achieve
their creative potential, control their productive output, and lead independent, intellectual
lives, all of which are essential requisites for any free society").
227. See Special Rapporteur's Report on Copyright Policy, supra note 17, ¶ 26 ("Some
elements of intellectual property protection are indeed required-or at least strongly encouraged-by reference to the right to science and culture. Other elements of contemporary
intellectual property laws go beyond what the right to protection of authorship requires, and
may even be incompatible with the right to science and culture."); Sam Ricketson, Intellectual Propertyand Human Rights, in COMMERcIAL LAW AND HUMAN RIGHTS 187, 212 (Stephen Bottomley & David Kinley eds., 2002) ("Many, though by no means all, of the rights
protected under IP laws can claim a foundation in the human rights obligations contained
1428
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
require that intellectual property rights be protected under the oftused property model, which is neither the best nor the only model
for such protection. 228 As the CESCR made clear in General Comment No. 17, the ICESCR does not speak to the modalities of protection concerning the right to the protection of the moral and material interests resulting from intellectual production. 229 State
parties therefore have wide discretion to determine how this right
is to be protected.
The third contribution is that a robust human rights discourse
in the intellectual property area will help illustrate the difficult
challenge of striking an appropriate balance in the intellectual
property system. Although commentators often underscore the importance of balance, balance cannot be struck without a deep and
thorough understanding of the local environment. As Daniel Gervais rightly reminded us, "[b]alance . .. is not, contrary to what one
often reads or hears in policy debates concerning intellectual prop-
in articles 27(2) of the Universal Declaration and 15(1)(c) of the ICESCR, but these claims
need to be balanced against other rights that may be invoked by third parties."); Yu, Nonmultilateral Era, supra note 23, at 1048 (underscoring "the importance of distinguishing
the human rights attributes of intellectual property rights from the non-human rights aspects of intellectual property protection"); Yu, ReconceptualizingIntellectualProperty Interests, supranote 18, at 1077 ("[S]ome attributes of intellectual property rights are protected
in international or regional human rights instruments, while other attributes do not have
any human rights basis at all"); Peter K Yu, Ten Common Questions About Intellectual
Propertyand Human Rights, 23 GA. ST. U. L. REV. 709, 710-11 (2007) [hereinafter Yu, Ten
Common Questions] ("[Slome attributes of intellectual property rights are protected in international or regional human rights instruments while other attributes do not have any
human rights basis at all." (emphasis omitted)).
228. See Yu, Reconceptualizing Intellectual Property Interests, supra note 18, at 1089
("[A] property-based regime is not the only acceptable modality of protection that can be
used to realize the right to the protection of material interests in intellectual creations. Nor
is it the best. Instead, it merely provides an option.").
229. As the CESCR stated:
The term of protection of material interests under article 15, paragraph 1(c),
need not extend over the entire lifespan of an author. Rather, the purpose of
enabling authors to enjoy an adequate standard of living can also be achieved
through one-time payments or by vesting an author, for a limited period of
time, with the exclusive right to exploit his scientific, literary or artistic production.
General Comment No. 17, supra note 8, ¶ 16; see also Torremans, Copyright, supra note 35,
at 229 ("[A] lot of freedom is left to Contracting States in relation to the exact legal format
of [the] protection [for the interests of authors and creators]."); Yu, ReconceptualizingIntellectual Property Interests, supra note 18, at 1088-92 (discussing the different acceptable
modalities of protection that can be used to realize the right to the protection of interests in
intellectual creations).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1429
erty, a simple axis with rights holders at one end and users of intellectual property on the other." 2 30 Indeed, similar challenges can
be found in efforts to strike an appropriate balance between human
rights and intellectual property rights. Striking a balance between
the human rights aspects of intellectual property rights and other
human rights will require considerable effort, careful assessment,
and innovative approaches. 231
Indeed, different countries will need different intellectual property laws and policies. Such a need is in part why policymakers
and commentators have heavily criticized the one-size-fits-all regime--or, more precisely, the supersize-fits-all regime-now enshrined in the TRIPS Agreement and TRIPS-plus bilateral, regional, and plurilateral trade agreements. 232 Commentators have
also noted how countries with strong control of information, or
230. Daniel J. Gervais, TRIPS and Development, in INTELLECTUAL PROPERTY, TRADE
AND DEVELOPMENT: STRATEGIES TO OPTIMIZE EcoNOMIC DEVELOPMENT IN A TRIPS-PLus
ERA 49 (Daniel J. Gervais ed., 1st ed. 2007) [hereinafter INTELLECTUAL PROPERTY, TRADE
AND DEVELOPMENT].
As I noted in an earlier article:
Thus far, commentators have employed different approaches to resolve these
conflicts. For example, they have discussed the distinction between true conflicts and false conflicts, drawing on conflict-of-law jurisprudence and scholarship. They have also explored the use of hierarchies, balancing techniques, the
proportionality doctrine, and interpretations by reference to external normssuch as scientific norms in relation to the right to enjoy the benefits of scientific
progress and its applications. In addition, the Ontario Human Rights Commission introduced a Policy on Competing Human Rights, which outlines a process
for reconciling competing human rights claims and providing case-by-case accommodation of individual and group rights. In an earlier work, I also outlined
three different approaches that can be used to resolve these conflicts: (1) just
remuneration; (2) core minimum; and (3) progressive realization. Under the
just remuneration approach, for instance, authors and inventors hold a right
to remuneration (rather than exclusive control) while individuals obtain a human rights-based compulsory license (as opposed to a free license).
Yu, Anatomy, supra note 18, at 76-80 (footnotes omitted).
232. See Shamnad Basheer & Annalisa Primi, The W1iPO Development Agenda: Factoring in the 'Technologically Proficient"Developing Countries, in IMPLEMENTING THE WORLD
231.
INTELLECTUAL PROPERTY ORGANIZATION'S DEVELOPMENT AGENDA 100, 110 (Jeremy de
Beer ed., 2009) [hereinafter IMPLEMENTING WIPO's DEVELOPMENT AGENDA] (alluding to the
"one-'super-size'-fits-all model"); Jeremy de Beer, Defining WIPO's Development Agenda, in
IMPLEMENTING WIPO's DEVELOPMENT AGENDA, supra, at 1, 3 (referring to "a one-size, es-
pecially a supersize, model of global lIP law"); James Boyle, A Manifesto on WIPO and the
Futureof Intellectual Property, DUKE L. & TECH. REV., Sept. 8, 2004, at 4 ("One size fits all.
And it is 'extra large."'); Peter K. Yu, The Global Intellectual Property Order and Its Undetermined Future, 1 WIPO J. 1, 9 (2009) (noting the problems raised by a "super-size-fits-all
model").
1430
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
those transitioning from a Soviet past, will need a different copyright system. 233 Scrutinizing intellectual property law and policy
through a human rights lens will help us understand the potential
interaction of these laws and policies "with the economic, political,
234
and social particularities of different nation states."
The final contribution is that a robust human rights discourse
in the intellectual property area will provide the much-needed rhetorical force to help strengthen limitations, safeguards, and flexibilities in the intellectual property system. 235 Such rhetoric is particularly powerful at the international level. 2 36 Thus far, many
233. See Neil Weinstock Netanel, Asserting Copyright's Democratic Principles in the
GlobalArena, 51 VAND. L. REV. 217, 277-78 (1998) (arguing that "copyright should be carefully tailored to give greater potency to its support of democratization and to minimize the
barriers that it may pose under various local conditions" and that "it may be more conducive
to democratic development to allow for a good measure of compulsory licensing, with royalties set to enable widespread access, while also providing some remuneration to copyright
owners"); Peter K. Yu, Moral Rights 2.0, 1 TEX. A&M L. REV. 873, 891 (2014) ("In countries
with heavy censorship, ... Internet users often will need to reuse, without permission, materials previously approved by censors or that are only available abroad. To provide an alternative source of information, they may need to repost copyrighted stories, videos, or photos that otherwise would not have been available. They may also need to repurpose
preexisting materials to address issues that they otherwise cannot discuss because of government censorship."); Peter K. Yu, PromotingInternet Freedom Through the Copyright
System, EJOURNAL USA, June 2010, at 7 (discussing the need to adjust the balance of the
copyright system to reflect the different political and social conditions in countries where
information flows have been heavily regulated).
234. See HELFER & AUSTIN, supra note 19, at 359 ("Scrutinizing copyright through a human rights lens, with an appropriate sensitivity to the duties imposed by the subsistence of
copyright, directs attention to how the burdens imposed by these duties intersect with the
economic, political, and social particularities of different nation states.").
As Holger Hestermeyer asked rhetorically:
235.
Do not human rights norms "recognize" rather than "create" human rights,
pointing to a right pre-existing in nature, or maybe a transcendental notion of
the aspirations that we all carry inside? Would not a legislator lose its legitimacy if it decided to disregard these norms? Is it not all but natural to grant
norms that guarantee the freedoms and needs of individuals precedence over
norms that are merely instrumental and serve these goals only indirectly? As
an aspiration and goal at this abstract level this thought is almost impossible
not to agree with.
HESTERMEYER, supra note 21, at 204 (footnotes omitted).
236. As Professors Helfer and Austin observed:
From a negotiating perspective, reform arguments that draw upon the output
of these human rights venues have a distinct strategic advantage. They invoke
legal rules and norms adopted by institutions whose provenance and legitimacy are well established and that have received the imprimatur of many governments in other international fora. By drawing upon these sources, reform
advocates can more credibly claim that a rebalancing of intellectual property
protection rules is necessary to harmonize two parallel regimes of internation-
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1431
developing countries have utilized human rights arguments to
push for these limitations, safeguards, and flexibilities, which they
hope will be transformed into "ceilings," or maximum limits, to curtail the further expansion of intellectual property rights. 237 To be
sure, the development imperative can provide some helpful justification for these limitations, safeguards, and flexibilities. 238 Nevertheless, development-based arguments do not have the same rhetorical pull as human rights arguments. While the former invokes
sentiments relating to altruism and humanitarian assistance, the
latter calls for equality and respect for human dignity.
ally recognized "rights." And they can more easily deflect claims that such rebalancing efforts are merely fig leaves for self-serving legislation by well-resourced user industries or disguised attempts to distort free trade rules or free
ride on foreign creators and inventors.
HELFER & AUSTIN, supra note 19, at 510; see also Willem Grosheide, General Introduction,
in A PARADOX, supra note 20, at 3, 5 ("Strategically, [the view that human rights are perceived as a countervailing force against intellectual property rights] is often used during
international trade negotiations in order to weaken the position of the developed world.");
Christophe Geiger, "Constitutionalizing"Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union, 37 INT'L REV. INTELL.
PROP. & COMPETITION L. 371, 382 (2006) ("It is thus becoming urgent to give IP law a new
legitimacy and to ensure the reconciliation of interests by searching for a new foundation
for the system. In our opinion, fundamental rights and human rights can offer a suitable
basis for a balanced system." (footnote omitted)). But see Ruth L. Okediji, The Limits of
Development Strategies at the Intersection of Intellectual Property and Human Rights, in
INTELLECTUAL PROPERTY, TRADE AND DEVELOPMENT, supra note 230, at 355, 370-71 [here-
inafter Okediji, Limits of Development Strategies] ("[Tihe limitations of the human rights
narrative are amplified when we move from the context of essential medicines and access
to drugs to the relatively banal and non-life-threatening domain of literary and artistic
works.").
237. See Annette Kur & Henning Grosse Ruse-Khan, Enough Is Enough-The Notion of
Binding Ceilings in International Intellectual Property Protection, in INTELLECTUAL
PROPERTY RIGHTS IN A FAIR WORLD TRADE SYSTEM: PROPOSALS FOR REFORM OF TRIPS 359,
359 (Annette Kur with Marianne Levin eds., 2011) (calling for the development of mandatory ceilings in intellectual property law and policy); Graeme B. Dinwoodie, Federalized
Functionalism:The Future of Design Protectionin the European Union, 24 AIPLA Q.J. 611,
715 n.274 (1996) (advancing the concept of "binding 'substantive maxima"'); Rochelle Cooper
Dreyfuss, TRIPS-Round II: Should Users Strike Back?, 71 U CHI. L. REV. 21, 27 (2004) ("The
WTO system must begin to recognize substantive maxima on the scope of available protection. .. ."); Ruth Okediji, Toward an International Fair Use Doctrine, 39 COLUM. J.
TRANSNAT'L L. 75, 168 (2000) (proposing to develop an international fair use doctrine as a
"ceiling"); Peter K. Yu, TRIPs and Its Discontents, 10 MARQ. INTELL. PROP. L. REV. 369, 402
(2006) ("The international intellectual property regime, to some extent, is handicapped by
its lack of maximum standards.").
238. See Peter K Yu, Five Decades of Intellectual Property and Global Development, 8
WIPO J. 1, 4-7 (2016) [hereinafter Yu, Five Decades] (discussing the ongoing efforts to realize the U.N. Sustainable Development Goals in the intellectual property arena while
drawing insights from the development of the Declaration on the Right to Development).
1432
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
Moreover, as Mary Ann Glendon pointed out, "rights talk," for
both good and bad, generates its own power and dynamics. 2 3 9 When
a right is characterized as a human right, such characterization
"often invokes .
.
. a language of trumps and unconditional de-
mands." 240 Considering the wide recognition of human rights before the adoption of the UDHR and the continuing controversy surrounding the right to development, 24 1 which was first articulated
in 1972 but did not emerge until December 1986,242 human rights
arguments have certainly provided more rhetorical force and persuasive power than development-based arguments.
B. Human Rights
Although the literature on intellectual property and human
rights has at times highlighted the benefits of a robust human
rights discourse in the intellectual property area, little, if any, of
this literature has highlighted the contributions provided by a robust intellectual property discourse in the human rights area. This
subpart therefore turns to these contributions.
The first contribution is that a robust discourse on intellectual
property and human rights will highlight the immense challenge
of balancing the different types of human rights. Those who consider intellectual property as human rights, or emphasize the property aspects of intellectual property rights, will view conflicts between human rights and intellectual property rights as
endogenous conflicts within the human rights regime. 2 43 As a result, policymakers, commentators, and activists will need to find
ways to balance these equally important rights. 244 After all, like
239. See also Forman, supranote 219, at 45 ("Rights-based discourse, litigation, and action appear to have played significant roles in shifting policy, price, and perception around
AIDS medicines."). See generally MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT
OF POLITICAL DISCOURSE (1991) (discussing the dynamics of "rights talk" and how such talk
has impoverished the American political discourse).
240. HELFER & AUSTIN, supra note 19, at 504.
241. See generally Abdel-Latif, supra note 93 (discussing the right to development as
part of the interface between intellectual property and human rights); Yu, Five Decades,
supra note 238, at 4-10 (discussing insights that the right to development has provided to
the intellectual property area and advancing observations on intellectual property and
global development).
242. Okediji, Limits of Development Strategies, supra note 236, at 360.
243. See supra note 77 (collecting sources that discuss the use of the right to private
property to provide an alternative human rights basis for intellectual property rights).
244. See Yu, Anatomy, supra note 18, at 76-80 (discussing the different approaches to
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1433
other human rights, intellectual property rights are intended to be
"universal, indivisible and interdependent and interrelated." 2 4 5
Even for those who do not take such a strong human rightsbased approach to intellectual property rights, they admit that
some aspects of intellectual property rights have human rights bases. Because of this overlap, it is important to separate the human
rights aspects of intellectual property rights from their non-human
rights aspects. 246 Thus, a robust discourse on intellectual property
and human rights will help us think more deeply about the different ways to address the internal tensions and conflicts within the
human rights system. Such a discourse will also help us devise new
principles, mechanisms, and institutions to resolve these tensions
and conflicts.
The second contribution is that a robust discourse on intellectual
property and human rights will enable us to revisit the continuous-and, for some, unwanted-debate on a potential hierarchy of
human rights. Although Paragraph 5 of the Vienna Declaration
and Programme of Action stated explicitly that "[a]ll human rights
are universal [and] indivisible," 2 4 7 some commentators still have a
tendency to separate the different types of human rights based on
whether they belong to the first, second, or third generation. 248 For
resolve the conflicts between the human rights aspects of intellectual property rights and
other human rights).
245. World Conference on Human Rights, Vienna Declaration and Programme of Action,
¶ 5, U.N. Doc. A/CONF.157/23 (June 25, 1993) [hereinafter Vienna Declaration].
246. See Yu, Digital Copyright Enforcement Measures, supra note 24, at 461 (noting the
need to "engag[e] in a proper analysis of the conflicts between intellectual property rights
and the non-human rights aspects of intellectual property rights"); Yu, NonmultilateralEra,
supra note 23, at 1048 (underscoring "the importance of distinguishing the human rights
attributes of intellectual property rights from the non-human rights aspects of intellectual
property protection").
247. Vienna Declaration, supra note 245, ¶ 5.
248. As Matthew Craven explained:
That economic, social, and cultural rights have been identified as a discrete
category of human rights is most usually explained in terms of their distinct
historical origin. Economic, social, and cultural rights are frequently termed
"second generation" rights, deriving from the growth of socialist ideals in the
late nineteenth and early twentieth centuries and the rise of the labour movement in Europe. They contrast with the "first generation" civil and political
rights associated with the eighteenth-century Declarations on the Rights of
Man, and the "third generation" rights that encompass the rights of "peoples"
or "groups", such as the right to self-determination and the right to development. In fact the reason for making a distinction between first and second generation rights could be more accurately put down to the ideological conflict between East and West pursued in the arena of human rights during the drafting
1434
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
many decades, countries in the developed West have also privileged civil and political rights over economic, social, and cultural
rights. 249
Because the right to the protection of the moral and material
interests resulting from intellectual production is a socio-economiccultural right that falls within the second generation, any discussion of that right, and the interplay of that right and other human
rights, will require scholars to think more deeply about the appropriate treatment of social, economic, and cultural rights. 250 In ad-
of the Covenants. The Soviet States, on the one hand, championed the cause of
economic, social, and cultural rights, which they associated with the aims of
the socialist society. Western States, on the other hand, asserted the priority
of civil and political rights as being the foundation of liberty and democracy in
the "free world". The conflict was such that during the drafting of the International Bill of Rights the intended treaty was divided into two separate instruments which were later to become the ICCPR and the ICESCR.
CRAVEN, supra note 206, at 8-9 (footnotes omitted); see also Asbjorn Eide & Allan Rosas,
Economic, Social and Cultural Rights: A Universal Challenge, in ECONOMIC, SOCIAL AND
CULTURAL RIGHTS: A TEXTBOOK 15, 15-16 (Asbjorn Eide et al. eds., 1995) (discussing use of
the terms "first generation," "second generation," and "third generation" to distinguish between different types of human rights); HELFER & AUSTIN, supra note 19, at 13 ("As a practical matter . . ., the formal equality of the two generations of rights masks a deeper debate
over competing conceptions of state responsibility to satisfy basic human needs. The drafters of the ICESCR and the ICCPR intended both treaties to be acceptable to socialist states,
developing nations, and industrialized free-market countries. But the substantive and institutional differences between the two Covenants are often characterized as reflecting political and ideological divisions between these groups of countries."); LANDMAN, supra note
26, at 6 ("While charting the genealogy of human rights, one accepts that there have been
chronological generations of rights, but that in their current manifestation, such a history
does not privilege one set of rights over another."); Roland Rich, The Right to Development:
A Right of Peoples?, in THE RIGHTS OF PEOPLES, supra note 166, at 39, 41 (outlining the
three generations of human rights as advanced by Karel Vasak, the former legal adviser of
UNESCO).
249. See CRAVEN, supra note 206, at 9 ("Western States .. . asserted the priority of civil
and political rights as being the foundation of liberty and democracy in the 'free world."');
DONNELLY, supra note 187, at 27 ("We should ... note that in some Western circles a lingering suspicion of economic and social rights persists."); Pierre San6, Introduction to
HUMAN RIGHTS IN EDUCATION, supranote 15, at 1, 1 ("Some states were of the opinion that
civil and political rights were 'genuine' human rights and should be implemented immediately, while economic, social and cultural rights were considered to be merely goals to be
achieved progressively."); Coombe, Intellectual Property, supra note 23, at 60 ("[E]conomic,
social, and cultural rights have been juridically marginalized in comparison to civil and political rights, both in terms of the institutional frameworks developed for their implementation and in terms of their judicial interpretation."); Yu, ReconceptualizingIntellectualProperty Interests, supra note 18, at 1148 ("[D]uring the UDHR drafting process, many Western
countries, in particular Britain and the United States, were reluctant to recognize economic,
social, and cultural rights as human rights.").
250. See HELFER & AUSTIN, supra note 19, at 14 ('"The interface between human rights
and intellectual property both accentuates and challenges the tensions between first and
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1435
dition, because the protection of traditional knowledge and traditional cultural expressions will raise questions about group
rights, 251 a robust discourse on intellectual property and human
rights will further invite researchers to take more seriously the
third generation of human rights. In short, the debate on intellectual property and human rights will provide a rich discussion implicating human rights in all three generations and of all typescivil, political, economic, social, cultural, and collective.
The third contribution is that a robust debate on intellectual
property and human rights will require scholars to determine
whether they subscribe to a philosophical or positive conception of
human rights. Richard Falk identified two schools of jurisprudence
in this area:
The positivists consider the content of human rights to be determined
by the texts agreed upon by states and embodied in valid treaties, or
determined by obligatory state practice attaining the status of binding
international custom. The naturalists, on the other hand, regard the
content of human rights as principally based upon immutable values
that endow standards and norms with a universal validity. 252
While these two schools are not mutually exclusive, and commentators have chosen to discuss human rights based on both conceptions, the emphasis a researcher has will likely affect the outcome
of his or her analysis.
Initially, scholars tackling issues at the intersection of intellectual property and human rights focused on the philosophical conception of human rights. Beginning two decades ago, however, the
greater emphasis on the right to the protection of the moral and
material interests resulting from intellectual production and the
close analysis of related human rights documents have caused
scholars to devote more attention to the positive conception of human rights. A better understanding of the differences between
second generation rights.").
251. See General Comment No. 17, supra note 8,
32 (noting that the protection of the
scientific, literary, and artistic productions of indigenous peoples "might include the adoption of measures to recognize, register and protect the . . . collective authorship of indigenous peoples under national intellectual property rights regimes').
252. Richard Falk, Cultural Foundations for the International Protection of Human
Rights, in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 44,
44 (Abdullahi Ahmed An-Na'im ed., 1992); see also THOMAS W. POGGE, WORLD POVERTY AND
HUMAN RIGHTS: COSMOPOLITAN RESPONSIBILITIES AND REFORMS 59 (2d ed. 2008) (discussing the distinction between legal and moral human rights).
1436
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
these two rather distinct conceptions will enable scholars to closely
examine the strengths and weaknesses of their chosen approach.
While both approaches are equally defensible, and some commentators have combined them, 2 53 it is important for researchers to
recognize that the approach they choose may end up affecting the
outcome of their analyses.
The fourth contribution is that a robust discourse on intellectual
property and human rights will help explore whether the human
rights system needs to be updated in light of the proliferation of
new technologies. 254 Thus far, many of the discussions in this area,
such as those relating to the Internet, have raised questions of first
impression about how to protect human rights in a changing technological environment. As European Parliamentarian Catherine
Trautman asked in her foreword to the Research Handbook on Human Rights and Intellectual Property:
Does freedom of expression on the Internet constitute a new freedom
or is this a new form of expression that should be included in the existing framework? Indeed, in the wake of the expansion of the digital
environment, some have called for the creation of specific "fundamental digital rights". This idea of an "Internet Bill of Rights" was at the
255
centre of many discussions in several Internet Governance Forums.
In addition, the growing use of Internet intermediaries and other
emerging technology to monitor, filter, and censor communication
256
has raised human rights challenges in Western democracies.
253.
See Yu, MethodologicalReflections, supra note 30 ("[A] hybrid approach that starts
with a positivist conception of human rights but is informed by a strong philosophical un-
derstanding is likely to be superior to either the pogitivist or philosophical approach alone.").
254. See Catherine Trautman, Foreword to RESEARCH HANDBOOK, supra note 20, at xii,
xiii ("Many activists and lawyers tend to call for a 'digital review' of pre-existing human
rights (and their application in courts).").
255. Id. at xii; see also Yu, Digital Copyright Enforcement Measures, supra note 24, at
457 ("[Slome countries such as Costa Rica, France and Greece have recognized the right to
the internet as a fundamental right. Finland and Spain have gone even further to mandate
universal broadband access." (footnote omitted)).
256.
See REBECCA MACKINNON,
CONSENT OF THE NETWORKED: THE WORLDWIDE
STRUGGLE FOR INTERNET FREEDOM 101 (2012) ("[P]oliticians throughout the democratic
world are pushing for stronger censorship and surveillance by Internet companies to stop
the theft of intellectual property. They are doing so in response to aggressive lobbying by
powerful corporate constituents without adequate consideration of the consequences for civil
liberties, and for democracy more broadly."); Yu, Digital Copyright Enforcement Measures,
supra note 24, at 462-67 (identifying the potential human rights threats posed by new digital copyright enforcement measures); Seth F. Kreimer, Censorship by Proxy: The First
Amendment, Internet Intermediaries, and the Problem of the Weakest Link, 155 U. PA. L.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1437
The arrival of the debates on ubiquitous communication, synthetic
biology, and artificial intelligence has also raised complicated
questions about the essence of human rights protection in the
twenty-first century.257
Moreover, as Molly Land pointed out, the proliferation of new
communications technologies and media platforms have provided
individuals with the ability to utilize peer production to monitor
human rights compliance. 258 From a standpoint of human rights
protection, such
[p]eer production would not only significantly augment our ability to
identify, analyze, and respond to human rights violations in a timely
and effective manner, but also increase the extent to which ordinary
individuals connect to human rights issues, thus fostering the ability
of the movement to mobilize broad constituencies and influence public
opinion in support of human rights. 259
A greater exploration of human rights protection along these
new technological frontiers will therefore enhance our understanding of the interplay of human rights and new technologies. While
issues relating to intellectual property and technology in the past
REV. 11 (2006) (discussing how private actors have been enlisted as "proxy censors" to control the flow of information); Peter K. Yu, Digital Copyright Reform and Legal Transplants
in Hong Kong, 48 U. LOUISVILLE L. REV. 693, 715 (2010) (noting the free speech concerns
raised by the proposal in Hong Kong's digital copyright reform to introduce a streamlined
procedure to obtain users' information for the facilitation of copyright infringement actions);
Yu, NonmultilateralEra, supra note 23, at 1081 n.174 (noting that Internet service providers in many democracies in the developed world have now been used as gatekeepers to help
censor digital content and restrict information flows); Peter K. Yu, The GraduatedResponse,
62 FLA. L. REV. 1373, 1402 (2010) (discussing how the graduated response system would
undermine the protection of free speech, free press, and privacy).
257. See RASO ET AL., supra note 28 (evaluating the human rights impacts of uses of
artificial intelligence). One emergent question that has serious implications in this area
concerns whether machines could be, or should be, treated as humans for the purposes of
determining authorship or inventorship. See, e.g., Ryan Abbott, Inventive Machines: Rethinking Invention and Patentability, in INTELLECTUAL PROPERTY AND DIGITAL TRADE IN
THE AGE OF ARTIFICIAL INTELLIGENCE AND BIG DATA 113, 117 (Xavier Seuba et al. eds.,
2018) (arguing that "we should recognise computers as inventors").
258. See Molly Beutz Land, Peer ProducingHuman Rights, 46 ALBERTA L. REV. 1115,
1117 (2009) [hereinafter Land, Peer ProducingHuman Rights] ("[T]here are many ways in
which peer production might be used in conjunction with traditional reporting to achieve
greater participation in the process of human rights advocacy."); see also Ben Wagner et al.,
Introduction to the Research Handbook on Human Rights and Digital Technology, in
RESEARCH HANDBOOK ON DIGITAL TECHNOLOGY, supra note 24, at 1, 3 (noting that "it is
perfectly possible to engage with digital technologies and improve their contribution to human rights").
259. Land, PeerProducingHuman Rights, supra note 258, at 1117.
.
1438
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
affected only a small group of individuals, such as authors and inventors, the rapid growth of technology and its widespread use
have caused these issues to have a direct and ever-growing impact
on virtually all individuals. 260 In the twenty-first century, issues
relating to intellectual property and technology will be important
26 1
to anybody who seeks to properly function in society.
C. Interface Between the Two Regimes
The previous two subparts have explored the contributions a robust discourse on intellectual property and human rights can provide to the intellectual property and human rights regimes, respectively. This subpart turns to those contributions that the discourse
can offer to our ongoing efforts to examine the interface between
the intellectual property and human rights regimes.
The first contribution is that, although human rights and intellectual property rights originate from two disparate international
regimes, there is a growing need to understand the interplay between these two regimes. As the WTO Appellate Body reminded us
in United States-Standardsfor Reformulated and Conventional
Gasoline, "the General Agreement [which consists of the TRIPS
Agreement and many other agreements] is not to be read in clinical
isolation from public international law." 2 62 Likewise, commentators have underscored the importance of studying the interface between different international systems. 263
260. See Yu, Nonmultilateral Era, supra note 23, at 1059 ("Thanks to new technology
and increased digital literacy, the ability to create today is no longer limited to a small subclass of 'intellectual workers' or 'creative laborers.' Instead, a growing number of individuals
from both developed and less developed countries now have the ability to exploit their rights
to the protection of the moral and material interests in intellectual creations.").
261. See Special Rapporteur'sReport on the Right to Science, supra note 17, 1 19 ("[N]ew
information communication technologies . . . not only influence culture but are becoming an
intrinsic part of culture as everyday practice.").
262. Appellate Body Report, United States-Standardsfor Reformulated and Conventional Gasoline, pt. III.B, WTO Doc. WT/DS2/AB/R (adopted Apr. 29, 1996).
263. See Sonja Bartsch et al., Interfaces: A Concept for the Analysis of Global Health
Governance, in GLOBAL HEALTH GOVERNANCE AND THE FIGHT AGAINST HIV/AIDS 18 (Wolf-
gang Hein et al. eds., 2007) (advancing the concept and logic of "interfaces" for analyzing
global governance); HELFER & AUSTIN, supra note 19, at xiv (using "the term 'interface'. .
to provide a structure for dialog and engagement between ... two-hitherto largely separate-systems"); Peter K. Yu, Virotech Patents, Viropiracy, and Viral Sovereignty, 45 ARIZ.
ST. L.J. 1563, 1622 (2013) ("As the discussion of global health governance becomes more
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1439
The second contribution is that a close scrutiny of the interface
between the intellectual property and human rights regimes has
shown that human rights do not support all forms of intellectual
property rights, or all aspects of each form of these rights. 264 That
human rights support only some forms or aspects of intellectual
property rights while leaving others unsupported requires researchers to come up with innovative approaches to separate the
different aspects of intellectual property rights, depending on
whether they are supported by human rights.
In an earlier article, I proposed a structure to examine the different layers within a human rights framework for intellectual
property: the production layer, the interest layer, the protection
layer, and the limitation layer. 2 6 5 While this structure was devel-
oped based on the texts of the UDHR, the ICESCR, General Comment Nos. 17 and 21, as well as other human rights instruments
and documents, other ways can be developed to identify or separate
the layers involved in the human rights framework. By correctly
identifying and separating these layers, researchers will be able to
develop appropriate treatments of the overlap between human
rights and intellectual property rights.
The final contribution is that a deeper understanding of the interplay of intellectual property and human rights will help improve
the coherence within the overall international economic system.266
inter- and multi-disciplinary, experts have begun to pay greater attention to the multifaceted interfaces between and among the different international regimes. These interfaces are
not only present in places where the regimes intersect, but they can also be created through
legal linkages, technical cooperation, institutional interplay, and political alliances." (footnote omitted)).
264. See supra note 227 and accompanying text (noting that human rights only support
some forms or aspects of intellectual property rights).
265. See Yu, Anatomy, supra note 18, at 64-84 (advancing the proposal for the layered
structure with illustrations regarding scientific publications, scientific innovations, scientific knowledge, and indigenous knowledge, innovations, and practices).
266.
See ANDREW GOWERS, GowERSs REVIEW OF INTELLECTUAL PROPERTY 58 (2006) ("The
IP rights available within the [United Kingdom] must be both internally and externally
coherent. They must cover myriad ways in which knowledge is applied and ideas protected,
and must also be integrated with other national and international systems of rights, particularly in light of globalisation."); Peter K. Yu, InternationalEnclosure, the Regime Complex,
and Intellectual Property Schizophrenia, 2007 MICH. ST. L. REV. 1, 18 ("In recent years,
commentators and policymakers have begun to focus on the coherence of intellectual property policies, in addition to the maintenance of balance and flexibility in those policies.");
Peter K. Yu, The Strategic and Discursive Contributionsof the Max Planck Principles for
Intellectual Property Provisions in Bilateral and Regional Agreements, 62 DRAKE L. REV.
DISCOURSE 20, 24 (2014) (noting that "[i]n the past few years, commentators have widely
1440
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
Thanks to the marriage of intellectual property to trade through
the adoption of the TRIPS Agreement, 267 the intellectual property
system has now become a major component of this larger system.
As a result, intellectual property rules now form part of the governing rules. If systemic coherence is to be achieved, a greater linkage between intellectual property and human rights will be needed
to minimize the tensions and conflicts between rules originating
from the intellectual property system and those originating from
either the human rights system or from other international regulatory systems. 268
IV. RESPONSES TO SKEPTICS AND CRITICS
Since the emergence of scholarship on intellectual property and
human rights, commentators in the intellectual property field have
questioned the overall benefits of a human rights discourse in the
intellectual property area. In my earlier works, I have addressed
three lines of criticisms-namely, (1) the "human rights" ratchet of
intellectual property protection; (2) the undesirable capture of the
human rights forum by intellectual property rights holders; and (3)
lamented the incoherence of the international intellectual property regime-or, more correctly, the 'international intellectual property regime complex"').
267.
See generally DANIEL GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND
ANALYSIS 3-27 (3d ed. 2008) (describing the origins and development of the TRIPS Agreement); JAYASHREE WATAL, INTELLECTUAL PROPERTY RIGHTS IN THE WTO AND DEVELOPING
COUNTRIES 11-47 (2001) (recounting the negotiation process for the TRIPS Agreement);
Peter K. Yu, TRIPs and Its Discontents, 10 MARQ. INTELL. PROP. L. REV. 369, 371-79 (2006)
(examining four different accounts of the origins of the TRIPS Agreement).
268.
Cf. SURYA P. SUBEDI, INTERNATIONAL INVESTMENT LAW: RECONCILING POLICY AND
PRINCIPLE 158 (2d ed. 2012) ("Foreign investment law is . .. influenced by cross-fertilisation
from other areas of public international law, especially those relating to human rights and
environmental protection, as well as certain fundamental principles of international economic law such as the principle of economic self-determination of states, the right to develop,
and the permanent sovereignty of states over their natural resources."); Cynthia M. Ho, A
Collision Course Between TRIPS Flexibilities and Investor-State Proceedings,6 U.C. IRVINE
L. REV. 395, 464 (2016) ("[Iincreased awareness and cross-fertilization in the investment
arena of TRIPS norms would be desirable."); Peter K. Yu, CrossfertilizingISDS with TRIPS,
49 LOY. U. CHI. L.J. 321, 358-59 (2017) (calling for the greater use of "crossfertilization to
preempt the potential clash between [investor-state dispute settlement] and the WTO system"). Some commentators, however, are concerned about greater linkage, or cross-fertilization, between human rights and trade law. See Philip Alston, Resisting the Merger and
Acquisition of Human Rights by Trade Law: A Reply to Petersmann, 13 EUR. J. INTLL. 815,
815 (2002) (warning that "[Ernst-Ulrich] Petersmann's proposal for the enforcement of human rights through the WTO. . . has a fundamentally different ideological underpinning
from human rights law and would have extremely negative consequences for that body of
law").
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1441
the framework's potential bias against non-Western cultures and
traditional communities. 269 As I elaborated on these concerns:
First, a greater emphasis on the human rights attributes of intellectual property rights could result in the undesirable elevation of the
status of all attributes or forms of intellectual property rights to that
of human rights, regardless of whether these attributes or forms have
any human rights basis. Such elevation would exacerbate the already
severe imbalance in the existing intellectual property system. Second,
because rights holders and their supporting developed countries are
rich, powerful, and organized, they may be able to capture the human
rights forum to the detriment of less developed countries, traditional
communities, and the disadvantaged. Such institutional capture
would make the human rights forum less appealing for voicing concerns and grievances in the intellectual property area and for mobilizing resistance to increased intellectual property protection. Third, as
the cultural relativism debate has shown, the existing human rights
instruments may sit uneasily with countries and communities subscribing to non-Western cultures. Thus, a human rights discourse of
intellectual property--or, more precisely, a discourse based on "Western" human rights-is likely to perpetuate the author-centered Western worldview that ignores important interests in non-Western countries and traditional communities. 270
This part does not seek to rehash my earlier responses. Instead,
it addresses newer and more refined concerns of those skeptical or
critical of the ongoing efforts to develop a robust discourse on intellectual property and human rights. Specifically, this part explores how such a discourse can benefit the future development of
the intellectual property regime while addressing the needs and
challenges of developing countries.
A. Distractionsfrom InternalImprovements
One dominant strand of criticism from noted intellectual property scholars is that a robust discourse on intellectual property and
human rights does not help generate the reform needed in the intellectual property area, such as the development of new limitations and exceptions to intellectual property rights or the redesign
of the entire intellectual property or innovation system. In fact, a
269. For these earlier discussions, see Peter K. Yu, Challenges to the Development of a
Human Rights Framework for Intellectual Property, in INTELLECTUAL PROPERTY LAW AND
HUMAN RIGHTS, supra note 20, at 87; Yu, Reconceptualizing Intellectual Property Interests,
supra note 18, at 1123-48.
270. Yu, Reconceptualizing Intellectual PropertyInterests, supra note 18, at 1124.
1442
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
greater focus on this discourse could undermine such development
by taking away the time, energy, and effort needed to develop
scholarship and policy analysis in the intellectual property area. 271
For example, such a focus may create disruptions to the existing
innovation system by fostering doctrinal incoherence, 272 promoting
uncertainty, 2 7 3 and inviting unproductive confrontation. 2 7 4 That fo-
271. See Mylly, supra note 98, at 104 ("[Ijncreasing invocations of fundamental rights
arguments in IP contexts could focus our attention away from the broader problematic developments of IP law. It is such developments that create the need to adjust the exclusive
rights in the first place. According to a popular argument, we should concentrate on the
proper inner limits of IP and its unjustifiable general developments.").
272. See Helfer, Mapping the Interface, supra note 98, at 9 ("Anxiety about the fragmentation of international law and the resulting uncertainty for state's legal obligations are
[another] reason invoked for keeping human rights and IP apart."); HELFER & AUSTIN, supra note 19, at 505 ("[Another] explanation for resistance to the human rights-intellectual
property interface stems from a concern with fragmentation of international regimes, overlapping competencies of international institutions, and conflicts among legal obligations.");
Raustiala, supra note 74, at 1027-28 (noting the occurrence of strategic inconsistencies
"when actors deliberately seek to create inconsistency via a new rule crafted in another
forum in an effort to alter or put pressure on an earlier rule").
273. As Rochelle Dreyfuss lamented:
Instead of relying on legislatures and courts to wield well-understood tools embedded in existing patent law, ad hoc rights-balancing leads to unpredictable
decision-making. The result, ironically, is an environment less conducive to
decisions to invest time and money in intellectual efforts. The new-human
rights-justification can, in short, thwart the traditional-utilitarian-goal of
limiting protection from free riders as a means of encouraging the advancement of knowledge.
Dreyfuss, supra note 208, at 74.
274. As Professor Dreyfuss observed:
[I]t is hard to see how a rights discourse illuminates decisions on restructuring
the patent system. Instead of highlighting concerns that ought to be taken into
account, rights talk creates an adversarial climate in which each side ups the
ante, further limiting access to important developments and interfering with
the proper operation of the system as a whole. Indeed, the real paradox appears
to be the following: While the new discourse attempts to help the marginalized,
its consequence is double-marginalization-prices go up and output goes down
as each right holder seeks to maximize its individual return. A utilitarian perspective allows policy makers to use the ample arsenal of available tools to
make law responsive to changes in innovation and to align the system with
other social interests, including but not limited to ones that are deemed fundamental.
Id. at 94 (footnote omitted); see also Helfer, Mapping the Interface, supra note 98, at 9 ("[T]o
label something as a human right implies a rhetoric of absolutes and unconditional entitlements that is ill-suited to the rapidly changing technological and economic landscape in
which IP rules operate.").
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1443
cus may also undermine those intellectual property rights that human rights have supported. 275 Indeed, a greater focus in this direction may even create the false hope of locating a more promising
approach to help developing countries strike a better balance in the
international intellectual property system. To many of these skeptics and critics, reform efforts that are endogenous to the intellectual property system are likely to be more promising than those
that are exogenous to the system.
While I am sympathetic to this line of criticism, or at least skepticism, I hold a different perspective and offer three responses. The
first response is that the efforts to strengthen and refine the discourse on intellectual property and human rights do not always
compete in a zero-sum manner with efforts to undertake reform in
the intellectual property area. While many policymakers and commentators will be interested in the latter, others will be interested
in the former, or both the former and the latter. In the past three
decades, we have seen an increasingly sophisticated intellectual
property debate generated by the greater linkage between intellectual property rights and other areas, such as public international
law, international trade, or investment law. 2 7 6 Such linkage has
also brought to the debate new organizations, policymakers, and
275. See Dreyfuss, supra note 208, at 74 ("Presumably, human rights can be outweighed
only by other human rights. Accordingly, under a human rights approach, the benefit
stream flowing from inventive production can be distributed, without a patentee's authorization, only to meet social needs that are likewise classified as fundamental."); see also Yu,
Ten Common Questions, supra note 227, at 712 ("[T]hose attributes or forms of intellectual
property rights that do not have a human rights basis are likely to be deemed less important
through a human rights lens.").
276. As I noted in an earlier article:
[The recent developments concerning investor-state dispute settlement] have
created a general impression that investment law has now rudely entered the
intellectual property domain. Such an intrusion is important because [investor-state] arbitrations involving intellectual property disputes represent "not
only a new frontier in investment arbitration, but more importantly, uncharted
territory in the increasingly complex and contested landscape of international
intellectual property obligations." There has also been a growing concern about
an ongoing shift of intellectual property norm-setting activities from the trade
regime to the investment regime. Such a shift could take away the traditional
limitations, safeguards, and flexibilities that have been built into the international intellectual property regime.
Peter K. Yu, The Investment-Related Aspects of Intellectual Property Rights, 66 AM. U. L.
REV. 829, 835 (2017) [hereinafter Yu, Investment-Related Aspects] (footnotes omitted) (quoting Ruth L. Okediji, Is Intellectual Property "Investment'?Eli Lilly v. Canada and the InternationalIntellectual Property System, 35 U. PA. J. INT'L L. 1121, 1122 (2014)).
1444
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
commentators, including those who do not have traditional expertise in the intellectual property area. 2 7 7
To be sure, the arrival of trade discussions has created an unhealthy gloss that disturbs law and policy analysis in the intellectual property area. 2 7 8 This distortion, however, is not the automatic result of the greater linkage between intellectual property
and trade. Rather, the distortion largely originates from a narrow
emphasis on profit maximization-an emphasis that privileges
trade over the social function of intellectual property rights. 279
277. See Peter K. Yu, IntellectualProperty Training and Education for Development, 28
AM. U. INT'L L. REV. 311, 328 (2012) ("[B]ecause of the ever-expanding scope of intellectual
property rights and the ability for these rights to spill over into other areas of international
regulation, intellectual property training and educational programs should feature interand multi-disciplinary perspectives. Many of the existing programs focus primarily on the
legal aspects of intellectual property. However, it is increasingly important to consider other
aspects of intellectual property, such as political, economic, social, and cultural." (footnote
omitted)); Peter K. Yu, Teaching InternationalIntellectual Property Law, 52 ST. LOUIS U.
L.J. 923, 940 (2008) ("Whether one likes it or not, the 'law and. . .' movement has finally
spread to international intellectual property law, and the subject has become increasingly
multidisciplinary.").
278. See infra note 282 (collecting sources that discuss this unhealthy trade gloss).
279. As Farida Shaheed, the Special Rapporteur in the Field of Cultural Rights, declared:
The human rights perspective focuses attention on important themes that may
be lost when copyright is treated primarily in terms of trade: the social function
and human dimension of intellectual property, the public interests at stake,
the importance of transparency and public participation in policymaking, the
need to design copyright rules to genuinely benefit human authors, the importance of broad diffusion and cultural freedom, the importance of not-forprofit cultural production and innovation, and the special consideration for the
impact of copyright law upon marginalised or vulnerable groups.
Special Rapporteur's Report on Copyright Policy, supra note 17, T 90; see also Sisule F.
Musungu, Rethinking Innovation, Development and Intellectual Property in the UN: WIPO
and Beyond 4-5 (Quaker Int'l Affairs Programme, Ottawa, TRIPS Issues Paper No. 5, 2005)
("So far the only widely accepted notion has been that intellectual property is trade-related,
justifying the TRIPS Agreement in the WTO but not the notion that intellectual property
rules are also education-related, health-related, defence-related and environment-related
and so forth."); Yu, Reconceptualizing IntellectualProperty Interests, supra note 18, at 1137
("Today, the development of intellectual property laws and policies is no longer just about
intellectual creations; it has, indeed, affected many areas that are related to other human
rights, including agriculture, health, the environment, education, culture, free speech, privacy, and democracy."). As the CESCR reminded us:
Ultimately, intellectual property is a social product and has a social function.
States parties thus have a duty to prevent unreasonably high costs for access
to essential medicines, plant seeds or other means of food production, or for
schoolbooks and learning materials, from undermining the rights of large segments of the population to health, food and education. Moreover, States parties
should prevent the use of scientific and technical progress for purposes con-
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1445
Moreover, there can be quite some synergy between efforts to
strengthen the discourse on intellectual property and human
rights and efforts to reform the intellectual property system. In the
past two decades, commentators have identified the different ways
to use human rights to justify the introduction of new limitations
and exceptions to intellectual property rights. The Marrakesh
Treaty, for instance, has become the first WIPO agreement to explicitly state the interrelationship between the intellectual property system and international human rights instruments. 280 In my
earlier works, I have also highlighted the benefits of providing human rights-based compulsory licenses. 28 1
The second response is that the past two decades have already
seen developments in trade, investment, and other areas rudely
intruding into the intellectual property policy space. The marriage
of intellectual property with international trade through the adoption of the TRIPS Agreement has brought to the field unwanted
trary to human rights and dignity, including the rights to life, health and privacy, e.g. by excluding inventions from patentability whenever their commercialization would jeopardize the full realization of these rights. States parties
should, in particular, consider to what extent the patenting of the human body
and its parts would affect their obligations under the Covenant or under other
relevant international human rights instruments. States parties should also
consider undertaking human rights impact assessments prior to the adoption
and after a period of implementation of legislation for the protection of the
moral and material interests resulting from one's scientific, literary or artistic
productions.
General Comment No. 17, supranote 8, T 35 (footnotes omitted).
280. See Marrakesh Treaty, supra note 90, pmbl., recital 1 ("Recalling the principles of
non-discrimination, equal opportunity, accessibility and full and effective participation and
inclusion in society, proclaimed in the Universal Declaration of Human Rights and the
United Nations Convention on the Rights of Persons with Disabilities."); see also Helfer,
Conflict or Coexistence?, supra note 56, at 50 ("No references to human rights appear in the
major intellectual property treaties such as the Paris and Berne Conventions, or in the more
recently adopted TRIPS Agreement.").
281. See Yu, Reconceptualizing Intellectual PropertyInterests, supranote 18, at 1096-99
(discussing the provision of human rights-based compulsory licenses); see also Special Rapporteur'sReport on the Right to Science, supra note 17, T 72 (discussing the use of "socially
responsible" or "humanitarian" licensing to "ensure[] that the licensing of intellectual assets, often developed by Government-funded research at universities, is negotiated and
transacted in a manner conducive to providing broad affordable access to disadvantaged
sections of society, particularly in developing countries"); Alan B. Bennett, Reservation of
Rights for HumanitarianUses, in 1 INTELLECTUAL PROPERTY MANAGEMENT IN HEALTH AND
AGRICULTURE INNOVATION 41, 41 (Anatole Krattiger et al. eds., 2007) (discussing ways to
reserve rights to meet the needs of developing countries for other humanitarian purposes);
MAHOP, supra note 23, at 117-57 (proposing a framework of intellectual property-based, but
human rights-oriented biodiversity regulatory measures); Joshua D. Sarnoff, The Patent
System and Climate Change, 16 VA. J.L. & TECH. 301, 350-51 (2011) (discussing "humanitarian licensing").
&
1446
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
distortions when intellectual property rights are interpreted with
a heavy trade gloss. 2 8 2 The recent efforts by Philip Morris, Eli Lilly,
and Bridgestone to use the investor-state dispute mechanism to
address their intellectual property disputes with host states have
also raised fears about the intrusion of investment law into the intellectual property policy space. 283
In fact, after three decades of interactions between the intellectual property system and other international regulatory systems,
it may be just too late to erect a "firewall" to preserve the purity of
the intellectual property system. 284 Instead, a more realistic approach is to develop ways to minimize the interferences posed by
other international regulatory systems, 285 or to establish new rules
of engagement to address the interplay of different international
regulatory systems. 28 6 As far as this interplay is concerned, it will
be highly worthwhile to explore why trade and investment have
282.
See Daniel J. Gervais, How Intellectual Property and Human Rights Can Live To-
gether: An Updated Perspective, in INTELLECTUAL PROPERTY LAW AND HUMAN RIGHTS, su-
pra note 20, at 3, 12 ("Exceptions to copyright are seen through a trade-related effects-based
prism."); Ruth L. Okediji, Public Welfare and the Role of the WTO: Reconsideringthe TRIPS
Agreement, 17 EMORY INT'L L. REV. 819, 914-15 (2003) (expressing disappointment that
WTO panels, despite focusing on the purpose and objective of the TRIPS Agreement and the
context of the negotiations, "have interpreted the provisions almost solely in light of the
economic expectations of the private right holders"); Yu, Nonmultilateral Era, supra note
23, at 1083-84 (noting that the views taken by intellectual property rights holders and their
supportive governments "are often colored by the trade-based-and at times, trade-onlyapproach developed through the founding of the WTO and the adoption of the TRIPS Agreement").
283. For this author's discussions of the interplay of investment and intellectual property, see Peter K. Yu, Conceptual and InstitutionalImprovements in Investor-State Dispute
Settlement, in RESEARCH HANDBOOK ON INTELLECTUAL PROPERTY AND INVESTMENT LAW
(Christophe Geiger ed., forthcoming 2019); Peter K. Yu, Investor-State Dispute Settlement
and the Trans-Pacific Partnership,in INTELLECTUAL PROPERTY AND THE JUDICIARY 463
(Christophe Geiger et al. eds., 2018); Peter K Yu, The Pathways of MultinationalIntellectual Property Dispute Settlement, in INTELLECTUAL PROPERTY AS PROPERTY: OF
PHARMACEUTICALS, TOBACCO, COMMODITIES AND OTHER MATTERS (Christopher Heath
Anselm Kamperman Sanders eds., forthcoming 2019); Yu, Crossfertilizing ISDS with
TRIPS, supra note 268; Yu, Investment-RelatedAspects, supra note 276.
284. See HELFER & AUSTIN, supranote 19, at 503 (rejecting, as a matter of both principle
and practical politics, "arguments for maintaining a firewall between the [intellectual property and human rights] regimes and avoiding the difficult work of normative engagement").
285. See supra note 266 (collecting sources that discuss the need for coherence in domestic and international intellectual property laws).
286. See Peter K Yu, The Second Transformationof the InternationalIntellectualProperty Regime, in CONSTITUTIONAL HEDGES OF INTELLECTUAL PROPERTY (Jonathan Griffiths
& Tuomas Mylly eds., forthcoming 2019) (calling for the establishment of these rules).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1447
managed to rudely enter and stay behind in the intellectual property policy space while human rights have not succeeded to the
same extent.
The third response is that human rights, as noted earlier, have
provided the much-needed help to push for greater intellectual
property reforms at the international level. There is no denying
that the emphasis on the threats posed by the TRIPS Agreement
to the protection of the right to life and the right to health has generated considerable support for new human rights developments, 287 which range from the U.N. Sub-Commission's adoption
of Resolutions 2000/7 and 2001/21288 to the OHCHR's critique of
the TRIPS Agreement 289 to other efforts relating to the Doha Declaration on the TRIPS Agreement and Public Health. 290 The human rights of those with print disabilities have also played an important role in the negotiation, adoption, and the eventual entering
into force of the Marrakesh Treaty. 291
To be sure, there are still fears that a greater emphasis on individual rights-in particular, the right to property 292-will lead to
distortions that favor individual authorial interests and those industries and governments that benefit from greater protection of
such interests. Nevertheless, these fears should be addressed by
developing a more sophisticated understanding of the interrelationship between intellectual property and human rights and a
more pluralistic interpretation of human rights. They should not
be addressed by ignoring the debate on intellectual property and
human rights. 293
287. See supranote 219 (collecting sources that examine the impact of the right to health
on intellectual property developments).
288. Res. 2001/21, supra note 7; Res. 2000/7, supra note 7.
289. High Commissioner'sReport, supra note 43.
290. World Trade Organization, Declaration on the TRIPS Agreement and Public
Health, WTO Doc. WT/MIN(01)/DEC/2 (2001), 41 I.L.M. 755 (2002).
291. Marrakesh Treaty, supranote 90.
292. See Yu, Anatomy, supra note 18, at 85-95 (discussing the growing use of the right
to property to provide an alternative human rights basis for intellectual property rights and
addressing the related concerns).
293. As I noted in an earlier article:
While [the concerns about the adverse impact of the linkage between intellectual property and human rights] are valid and important, the best response to
alleviate these concerns is not to dissociate intellectual property rights from
human rights or to cover up the fact that some attributes of intellectual property rights are, indeed, protected in international or regional human rights
1448
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
B. Lack of Benefits to Developing Countries
A growing strand of criticism that deserves some response pertains to whether a robust discourse on intellectual property and
human rights can benefit developing countries. In a recent article,
Ruth Okediji expressed reservation about the use of the human
rights frame to promote development in the intellectual property
area, pleading for "caution about the contemporary construction of
the IP/human rights interface and its sanguine embrace by wellmeaning scholars and policymakers alike." 2 9 4 As she elaborated:
The human rights framework is problematic for the development interests and aspirations of most people living in the Global South. [My]
skepticism first grew out of concern about the strongly individualistic
focus of human rights-both in its ideological orientation towards
western liberal tradition and in its reliance of human rights normsetting institutions on external constituencies for expertise and guidance. At least in the field of IP, those constituencies usually comprise
international non-governmental organizations that, while well-meaning, stymie the necessary domestic debate that is a precursor for the
development of local actors who can more ably challenge the structural challenges imposed by international IP regimes. The human
rights discourse certainly provides important grist for the international debate over global IP norms, but it accomplishes remarkably
little on the domestic front. Given the outsized role of international IP
in global development, it is unsurprising that IP has played a similarly outsized role in human rights. The instinctive fidelity of relevant
UN institutions and processes to a narrative that casts IP as an indispensable hero in the struggle for development in the Global South creates significant challenges for the promise of a redemptive effect of
29 5
human rights arguments on local IP reform initiatives.
Professor Okediji is not only a preeminent scholar in international intellectual property law, but also one of the rare few who
linked intellectual property to human rights before the historic
instruments. Rather, it is important to clearly delineate which attributes of
intellectual property rights would qualify as human rights and which attributes or forms of those rights should be subordinated to human rights obligations due to their lack of any human right basis. In doing so, a human rights
framework will highlight the moral and material interests of individual authors and inventors while exposing the danger of increased expansion of those
attributes or forms of intellectual property rights that have no human rights
basis.
Yu, ReconceptualizingIntellectual PropertyInterests, supra note 18, at 1128.
294. Okediji, Human Rights, supra note 219, at 4.
295.
Id. (footnote omitted).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1449
WIPO-OHCHR panel on "Intellectual Property and Human
Rights." 2 9 6 She was also the lead negotiator for Nigeria at the
WIPO diplomatic conference that concluded the Marrakesh
Treaty. 297 Her view on this debate therefore deserves close examination.
Professor Okediji's main concern with having a human rights
discourse in the intellectual property area is threefold. First, that
discourse narrowly emphasizes individual rights--or, worse, civil
and political rights as recognized in the Western liberal tradition.
This critique resembles the earlier critiques about the "human
rights" ratchet of intellectual property protection 298 and the human
rights system's potential bias against non-Western cultures and
traditional communities. 299
Second, she made an important claim that the balance demanded by international and regional human rights instruments
will not necessarily provide the balance needed in the intellectual
property system to move developing countries forward. As Professor Okediji observed:
Intellectual property doctrines that are primarily intended to balance
the interests of individual authors and users are ill-suited to address
the collective interest in, and need for, consistent and effective access
to knowledge goods. At a minimum, different kinds of limitations and
exceptions to IP rights are needed. An appropriately conceived
IP/human rights interface requires international legal recognition not
just of an obligation to have the right kind of national IP policy, but
the freedom and obligation to implement such a policy for the collective good. In sum, the call for balance reflected in General Comment
17 and in the IP/human rights literature unhelpfully substitutes the
internally required balance of IP rights considering the collective with
what human rights law requires of states in pursuit of the highest
ideals of human flourishing. 300
296. See Gana, supranote 35 (providing a rare engagement with the debate on intellectual property and human rights in 1996).
297. Ruth L. Okediji: Biography, HARv. L. SCH., https://hls.harvard.edulfaculty/direct
ory/11409/Okediji [https://perma.cc/Y94A-G5VWJ (last visited Apr. 1, 2019).
298. See Yu, ReconceptualizingIntellectual PropertyInterests, supra note 18, at 1124-33
(responding to criticisms concerning the "human rights" ratchet of intellectual property protection).
299. See id. at 1141-48 (responding to criticisms concerning the human rights system's
potential bias against non-Western cultures and traditional communities).
300. Okediji, Human Rights, supra note 219, at 35-36 (footnote omitted); see also Ruth
L. Okediji, Securing IntellectualPropertyObjectives: New Approaches to Human Rights Considerations, in CASTING THE NET WIDER: HUMAN RIGHTS, DEVELOPMENT AND NEW DuTy-
UNIVERSITY OF RICHMOND LAW REVIEW
1450
[Vol. 53:1375
In her view, if developing countries are to catch up with their more
developed counterparts, they will need to develop an appropriate
intellectual system that is well tailored to their specific needs, interests, conditions, and priorities. They may even have to decide
for themselves what innovation system they need and what role
intellectual property rights will play as part of this larger system. 30
1
Finally, she was concerned about the persistent institutional
weakness found in many developing countries. As she explained:
[Tihe IP/human rights interface is preoccupied with establishing flexibilities to the IP system, such as the Bolar exception in patent law,
the legitimacy of compulsory licenses, or fair use and other limitations
and exceptions in copyright law. Limitations and exceptions require
institutions-relatively sophisticated institutions-to effectively apply and enforce limits on IP. In least-developed countries, such institutions are lacking or are insufficiently mature to deploy existing limitations and exceptions-much less creatively assert new ones within
the unsettled context of international IP laws. Moreover, if all that the
IP/human rights interface produces are outcomes that could be
achieved without resorting to human rights, it is difficult to justify the
02
need to resort to human right frameworks in the first place.3
Interestingly, even though Professor Okediji was skeptical of the
success of using the human rights frame to generate the intellectual property reforms needed in developing countries, her recom-
BEARERS 211, 242 (Margot E. Salomon et al. eds., 2007) ("The primary utility of human
rights in the development discourse relating to intellectual property should be to preserve
and promote intellectual property's core balance-not replace it.").
301. As Professor Okediji explained:
The quest for balance or reconciliation that permeates the IP/human rights
literature reflects an implicit assumption--or acceptance of the assumptionthat IP rights are optimal means to advance human development in a globalized world. With the premise that the two regimes are formal equals, ... the
discourse of reconciliation reinforces the legitimacy of the current version of IP
rights and fosters acceptance of the idea that IP and human rights are justifiably in a competitive jostle over which should prevail as the dominant paradigm for promoting human welfare.
Okediji, Human Rights, supra note 219, at 27; see also Okediji, Limits of Development Strategies, supra note 236, at 364 ("[Self-determination ... offers a context in which the sovereign obligation to steward development would justify-perhaps demand-that a state devise
a means to encourage innovation, which is a proven factor in economic growth.. .. [S]elfdetermination would also police the boundaries of that stewardship by legitimizing interand intra-TRIPS efforts to ensure the appropriate level of protection to secure incentives to
create, use and adapt technology locally.").
302. Okediji, Human Rights, supra note 219, at 60.
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1451
mendation is not to refrain from engaging in human rights discussions in the intellectual property area. Rather, she underscored the
need to emphasize those aspects of human rights that are outside
the Western liberal tradition, such as collective rights and the
right to development. 303 As she declared:
[C]onsideration of the IP/human rights interface must extend beyond
discussion of the IP rights currently recognized in international human rights instruments and embrace possibilities for IP reform that
could emerge from a serious engagement with a panoply of economic,
social, cultural, and group rights. It is these rights ... that will most
deeply and genuinely inform meaningful prospects for human and economic development. 304
To some extent, her critique of the efforts to engage in a human
rights discourse in the intellectual property area resembles a critique of the flaws in, and the misguided development of, the existing international human rights system. In her view, the system is
flawed for three reasons:
First, a human rights framework for IP does not ineluctably facilitate
socially desirable outcomes for all countries; slapping human rights
ideals on IP regimes can, instead, actually strengthen IP rights in socially harmful ways. Second, human rights-driven responses to the serious global challenges exacerbated by an outsized global IP system
are not neutral. To the extent human rights objectives impose important limits on the domestic exercise of IP rights, that progress occurs principally in developed countries. In multilateral arenas where
norm-setting agendas are fixed, the most successful IP-related human
rights arguments are those that resonate predominantly in the western liberal tradition or that build on the IP jurisprudence of U.S. and
European courts. Other than where the right to health is involved,
concerns that implicate the values and institutions of leading developed countries frequently drive human rights advocacy for IP reform.
Third, and most significant, the limited effect of the human rights
framework on the IP/human rights interface is attributable to the narrow vision of human rights that has long dominated the discourseone that excludes economic, social, and cultural rights. 30 5
303. See id. at 31 ("Group economic, social, and cultural rights must assume a far greater
role in human rights frameworks directed at international IP law and policymaking."); see
also Abdel-Latif, supra note 93, at 605 (lamenting that "the right to development ... has
been conspicuously absent from th[e] growing interest in the human rights and IP interface").
304. Okediji, Human Rights, supra note 219, at 9-10.
305. Id. at 4-5 (footnotes omitted).
1452
UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 53:1375
According to Professor Okediji, the human rights frame will provide limited assistance to developing countries not because a human rights frame cannot help these countries, but because the existing human rights system privileges interests among developed
countries and within the Western liberal tradition at the expense
of those in the developing world.
This distinction is important because a greater understanding of
the methods and methodology used to conduct research on intellectual property and human rights will help us determine whether
our preferred approach will perpetuate the flaws in the existing
international human rights system. An enhanced understanding
will also help us design a more appropriate human rights framework for intellectual property law and policy to address the needs
and interests of developing countries. Achieving the latter is indeed one of the reasons why scholars should devote more attention
to the debate on intellectual property and human rights in the first
place.
CONCLUSION
When the TRIPS Agreement was adopted in April 1994, few
scholars paid attention to the human rights implications of intellectual property protection. If discussion arose, its focus tended to
center around development goals, basic human needs, or other abstract issues. 306 Today, however, international organizations and
academic scholars have undertaken a more systematic analysis of
issues lying at the intersection of intellectual property and human
rights. This "systematic turn" is due in no small part to the contributions academic commentators have made in this area in the past
two decades.
While it will still be worthwhile to engage in scholarship that
aims to clarify the scope, content, and obligations concerning the
right to the protection of the interests resulting from intellectual
production, or to address the potential tensions and conflicts between human rights and intellectual property rights, much of this
research has been completed admirably by the first generation of
306. See, e.g., Gana, supra note 35 (discussing ways to reconcile intellectual property
rights with the development process and human rights protection in precapitalist, preindustrial countries).
2019]
INTELLECTUAL PROPERTY AND HUMAN RIGHTS 2.0
1453
intellectual property and human rights scholars. To further advance the academic discourse, scholars in this area should start
thinking more deeply about the research and interpretive methods
used to advance the promotion and protection of human rights in
the intellectual property area. 307
Fortunately, the recent emergence of a slowly growing volume of
literature on human rights methods and methodology has provided
important insights into how scholars can upgrade the debate on
intellectual property and human rights. This article not only invites scholars to take a methodological turn, but also explains why
a robust discourse on intellectual property and human rights will
provide significant benefits to both the intellectual property and
human rights regimes. It is my hope that this discourse will help
take the debate on intellectual property and human rights to the
next level as we commemorate the seventieth anniversary of the
UDHR and celebrate the more than two decades of scholarship in
this intersectional area.
307. See LANDMAN & CARVALHO, supra note 29, at 127 ("[A]s the sources and levels of
information have become more robust, the human rights community needs to continue to
improve the degree to which it monitors, measures and analyses human rights.").
Related papers
City and country in the Greek world
A Companion to Cities in the Greco‐Roman World, ed. Miko Flohr & Arjan Zuiderhoek, 2024
Majority Rule, Compromise and the Democratic Legitimacy of Referendums
Swiss Political Science Review , 2018
CONCEPTUAL FRAMEWORK FOR REDESIGNING THE SPORTS POLICY OF INDIA
International Journal of Physical Education, Health Education, and Sports Science, 2019
Estudios de la vida de en las montañas de Aconcagua
Estudios de vida en las montañas de Aconcagua, 2006
De-Dollarizing the Peruvian Economy: A Portfolio Approach
Centro de Investigacion de la Universidad del …, 2003
Widespread variation in salt tolerance within freshwater zooplankton species reduces the predictability of community‐level salt tolerance
Limnology and Oceanography Letters
Cheap deployable networked sensors for environmental use
Australian Journal of Telecommunications and the Digital Economy, 2014
Suggested Guidelines for the Analysis and Interpretation of Environmental Effects of Transportation Facilities
Journal of Environmental Systems, 1976
Fast half-sibling population reconstruction: theory and algorithms
Algorithms for Molecular Biology, 2013
Detection of transforming growth factor alpha in normal, malignant, and hyperproliferative human keratinocytes
Journal of Experimental Medicine, 1988
Determinanty wykluczenia finansowego w Polsce
Prace Naukowe Uniwersytetu Ekonomicznego we Wrocławiu, 2018
High-energy signatures of binary supermassive black holes
EPJ Web of Conferences, 2013
- Find new research papers in:
- Physics
- Chemistry
- Biology
- Health Sciences
- Ecology
- Earth Sciences
- Cognitive Science
- Mathematics
- Computer Science