Mohammad Towhidul Islam (University of Dhaka - Department of Law) & Sadman Rizwan Apurbo have posted Human Rights Paradox in the International Intellectual Property Regime: Setting the Pecking Order (in Borhan Uddin Khan and Md. Jahid Hossain Bhuiyan (eds) Human Rights after 75 Years of the Universal Declaration of Human Rights: Reflections) on SSRN. Here is the abstract:
The international intellectual property (IP) regime seems to have an asymmetric relationship with international human rights jurisprudence. This is because while the IP regime secures rights in creative goods and services used in trade, commits primarily to protect the business interest creating monopoly therein and does not seek to meet the needs of others, the human rights regime talks about inherent and inalienable rights of people in accessing food, education, shelter, clothing, medical care and others as ‘basic necessities’ to live a dignified life. In such contested situation, the framers of the WTO TRIPS Agreement claim that the protection of IP rights contributes to the enjoyment of other rights by imbibing developmental values and moral standing and thus strengthens its own standing of human rights. However, it appears that developed countries’ ownership and monopolistic use of intellectual properties, and their unwillingness to transfer IP protected technologies often deprive developing and least developed countries from utilizing their competitive advantage of reverse engineering. This paper will explore the relationship between IP rights and human rights and argues that states should strive to align their human rights duties with IPR obligations through the treaty interpretation and the flexibility provisions of the IPR regime. In the event of an absolute conflict, however, the human rights obligations of states should take precedence in the pecking order of international law, making the trade regime responsive to this order and requiring States to respect their human rights obligations under the United Nations Charter and major human rights instruments.
