Prelude to Compatibility between Human Rights and Intellectual Property
Foster, Sharon E., Chicago Journal of International Law
I am moved by fancies that are curled
Around these images, and cling:
The notion of some infinitely gentle
Infinitely suffering thing.1
The goals of advocates for human rights and intellectual property rights are not incompatible, and in fact are harmonious and attainable without excluding or prioritizing one over the other. Yet today we are faced with growing, entrenched views that the only way to achieve the human rights goals of health, food, and education is through a reduction of intellectual property rights,2 and the view that only by expanded intellectual property rights can we provide incentives for innovation that will address the concerns for health, food, and education.3
The appearance of the conflict arises from the fact that certain human rights documents, such as the Universal Declaration of Human Rights4 ("UDHR") and the International Covenant on Economic, Social and Cultural Rights5 ("ICESCR") provide that every person has the right to health,6 food,7 and education,8 but these rights may be negatively impacted by the human right-also stated in these documents-for authors and inventors to retain moral and material interests in their creations.9 If an author has the right to material interests in his expression, this right may be realized through domestic copyright law providing a limited monopoly on that expression, thus increasing the cost for others to use the original author's work.10 If that "expression" is educational materials, the increased cost may place those materials out of the financial reach of those who could benefit most from it.
In the international arena, the debate regarding this conflict focuses on the Agreement on Trade-Related Aspects of Intellectual Property Rights11 ("TRIPS"), which requires state parties to implement certain minimum intellectual property laws to protect both domestic and foreign authors and inventors. Accordingly, a state that was once able to obtain intellectual property inexpensively because it did not have to recognize foreign copyright and patent interests now has to provide such protection, increasing the cost of such things as Healthcare, food, and educational materials. Thus, if intellectual properly laws are utilized to realize the human right of an author or inventor to moral and material interests in a creation or invention, this may conflict with the human right to health, food, and education.
Section II of this Article focuses on the attempt to reduce intellectual property rights by asserting the priority of human rights over economic policy in the United Nation's Economic and Social Council's ("ECOSOC") Resolution 2000/712 and subsequent commentary. Assertion of such a priority makes no sense given the interconnectedness of economic policy and human rights, nor is it practical from a human rights perspective because the realization of human rights is dependent upon domestic economic policies,13 where "economic policy" is defined as "the views, resolutions, regular decisions, acts of state, which it applies for influencing the economy to achieve its social-political goals."14 Human rights have been categorized as both social and political.15 Accordingly, economic policy is necessary to achieve human rights goals. The human rights problem that Resolution 2000/7 should have addressed is economic policy that improperly undermines human rights goals.16
Section III demonstrates this interconnectedness through a historical perspective of the modern human rights movement. It was the destructive self-interest of states in the period leading up to World War I and World War II that made world leaders realize the need to establish an international organization that would promote peace through economic stability and human rights, among other methods. The section demonstrates that the premise for modern human rights is the realization of those rights through domestic economic policy. Accordingly, it is not possible for human rights to have priority over economic policy. …