Human Development as an Intellectual Property Metric

By Osei-Tutu, J. Janewa | St. John's Law Review, October 1, 2016 | Go to article overview

Human Development as an Intellectual Property Metric


Osei-Tutu, J. Janewa, St. John's Law Review


introduction

The need to balance the interests of the creator against the interests of the public is a recurring theme in international intellectual property ("IP") law. This is reflected in the access to medicines, access to food, and access to knowledge movements, among others. The access to medicines movement has been relatively effective, with civil society insisting that patented medications to treat serious illnesses, such as HIV and cancer, should be made available and affordable to those who need them. Questions about IP's impact on development also arise with respect to food and education. For instance, should farmers be prohibited from the traditional farming practice of collecting seeds and replanting them if the seed is a genetically modified patented product? If piracy increases literacy, should some piracy be tolerated?

The question of whether to encourage greater protection or greater access may be framed as a distinction between the public interest and private interests. To some extent, this appears to align with the debate about the natural rights and utilitarian approaches to IP. The natural rights argument is based on the premise that creators enjoy some natural entitlement to IP protection.1 Under the utilitarian view, the protection is not a natural entitlement but rather it is designed to serve a particular purpose, such as stimulating innovation.2 International IP law is neither clearly utilitarian nor natural rights based. On closer examination, concerns about excessive IP protection are about something more than the dichotomy between public and private interests.

The critique of global IP rights is about a system that has come to be perceived as one that prioritizes corporate goals at the expense of human interests. In the international arena, the concerns have centered on human development issues, such as health and education. This is due to the failure of the current model to promote IP laws and policies that further human progress. The World Trade Organization Agreement on TradeRelated Intellectual Property Rights ("TRIPS Agreement") speaks of balancing the interests of users and producers of IP protected goods.3 Part of the problem may be due to a lack of clarity about how this balance should be determined. It is argued here that the balancing should contemplate factors that relate to the improvement of the human condition.

The United Nations ("UN") Human Development Index is based on such factors. Human development, as defined by the United Nations, is determined by assessing various components of human progress, including economic growth, health, and literacy.4 It may not be immediately apparent how these human development factors are relevant to IP law. However, some scholars have already made the connection between human flourishing, human development, and IP protection. Human development is critical for societal progress. It is an implicit objective of IP law and policy because IP rights regulate innovation, creativity, and the production of goods that promote human flourishing.

This Essay argues that human development should be adopted as a metric for IP because it is a useful and relevant metric, and one that can be invoked under both the natural rights and utilitarian frameworks. Metric, as used here, refers to a method for measuring the effects of IP laws.

Part I of this Essay will provide a brief overview of some of the reasons for the dissatisfaction with current IP law before making the connection between IP and human development in Part II. Part III explains how human development can be adapted as a metric for IP under both utilitarian and natural rights frameworks, while Part IV offers some examples of how a human development metric could apply to IP law. This project does not purport to comprehensively answer the question of how best to integrate human development as a metric into IP law. However, it will offer some preliminary suggestions about how this metric could apply to some traditional frameworks for IP in light of the core goals of the global regime and the explicit objectives of the TRIPS Agreement. …

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