Toward a Human Rights Framework for Intellectual Property
| Autor | Laurence R. Helfer |
| Páginas | 57-94 |
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Toward a Human Rights Framework
for Intellectual Property*
LAURENCE R. HELFER
Summary: Introduction. I. The textual and historical foundations of a human rights framework for
intellec tual property. II. Initial contestations over human rights and intellectual property. A. The rights
of indigenous people and traditional knowledge. B. The TRIPS agreement, TRIPS-plus treaties, and
human rights. III. Mediting intellectual property and economic, social, and cultural rights: the interpretive
approach of the CESCR Committee. A. Introducing a “violations approach” to author’s rights. B. Deve-
loping a distinctive human rights framework for author’s rights. C. First steps toward a balanced regime
of intellectual property protection. IV. Recent treaty-making in other intergovernmental organizations
relvant to a human rights framework for intellectual property. A. UNESCO: The convention on the
protection and promotion of the diversity of cultural expressions. B. WHO: The medical research and
development treaty. C. WIPO: The development agenda and access to knowledge treaty. Conclusion.
A. Using human rights to expand intellectual property. B. Using human rights to impose external
limits on intellectual property. C. Achieving human rights ends through intellectual property means.
INTRODUCTION
The international intellectual property system is on the brink of a deepening crisis.
Government officials, civil society groups, and private parties are staking out opposing
positions on a variety of issues in an increasingly wide array of international venues. The
issues range from patented medicine to biodiversity and traditional knowledge, and from
digital content and webcasting to the harmonization of procedural rules. The results are
increasingly dysfunctional: acrimonious and unresolved clashes over substantive rules and
values, competition among international institutions for policy dominance, and a prolife-
ration of fragmented and incoherent treaty obligations and nonbinding norms.
This ominous state of affairs has evolved fairly rapidly. The last decade has seen
a dramatic expansion of intellectual property protection standards, both in their subject
matter and in the scope of the economic interests they protect. Advances in technology
have engendered demands for new forms of legal protection by businesses and content
owners. And with the adoption of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (“TRIPS”),1 nation states linked intellectual property rights to the world
* Originalmente publicado en University of California, Davis Vol. 40, 2007. Se reproduce con expresa
autorización del autor.
1 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agree-
ment Establishing the World Trade Organization, Annex 1C, Legal Instruments — Results of the Uruguay
Round, 33 I.L.M. 81 (1994) [hereinafter TRIPS].
Anuario Andino de Derechos Intelectuales.
Año VIII - N.º 8. Lima, 2012
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURÍDICO GENERAL
trading system, creating new and robust enforcement opportunities at the international and
national levels. These interrelated developments have made intellectual property rights
relevant to a broad range of value-laden economic, social, and political issues with impor-
tant human rights implications, including public health, education, food and agriculture,
privacy, and free expression.2
A recent wave of resistance to this rapid expansion of intellectual property rights has
brought the work of the World Trade Organization (“WTO”) and the World Intellectual
Property Organization (“WIPO”) — the two most prominent international intellectual
property lawmaking venues — to a virtual standstill. In the WTO, issues relating to
compulsory licenses for patented pharmaceuticals; the relationship among biodiversity,
patents, and plant breeders’ rights; and the protection of geographical indications have
remained unresolved for nearly four years.3 Negotiations in WIPO are faring little better.
Industrialized nations are pressing for new treaties relating to substantive patent rules,
audiovisual works, and broadcasters’ rights. Developing countries and consumer groups
have countered with a “development agenda” that calls for a moratorium on new treaty-
making and instead demands that WIPO give greater attention to public access to knowled-
ge and to non-proprietary systems of creativity and innovation. These conflicting forces
have essentially neutralized each other. Each side has blocked or delayed its opponents’
proposals as debates over new rules and policies have become increasingly contentious
and mired in procedural formalism.4
With forward motion in the WTO and WIPO effectively stalled, both proponents
and opponents of intellectual property rights have sought out greener pastures. Develo-
2 For earlier analyses of these trends, see Peter Drahos, THE UNIVERSALITY OF INTELLECTUAL
PROPERTY RIGHTS: ORIGINS AND DEVELOPMENT 19-23 (1998), available at http://www.wipo.
int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf (documenting proceedings of panel discussion held by
World Intellectual Property Organization in collaboration with Office of U.N. High Commissioner for
Human Rights); Laurence R. Helfer, Human Rights and Intellectual Property: Conflict or Coexistence?,
22 NETH. Q. HUM. RTS. 167, 171-75 (2004) [hereinafter Helfer, Conflict or Coexistence]; Laurence R.
Helfer, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property
Lawmaking, 29 YALE J. INT’L L. 1, 26-45 (2004) [hereinafter Helfer, Regime Shifting].
3 See, e.g., Frederick M. Abbott, The WTO Medicines Decision: World Pharmaceutical Trade and the
Protection of Public Health, 99 AM. J. INT’L L. 317, 324-26 (2005); Scant Progress in GI Discussions,
BRIDGES WKLY. TRADE NEWS DIG. (Geneva, Switz.), Sept. 27, 2005, available at http://www.ictsd.
org/weekly/05-09 28/WTOinbrief.htm#2; TRIPS Council Meeting Suspended in Effort to Meet Public
Health Deadline, BRIDGES WKLY. TRADE NEWS DIG. (Geneva, Switz.), Mar. 16, 2005, available at
http://www.ictsd.org/weekly/05-03-16/story1.htm.
4 See, e.g., Daniel Pruzin, WIPO Members Reach Compromise on Advancing Patent Law Negotiations, 22
Int’l Trade Rep. (BNA) 1622 (Oct. 13, 2005) (“The United States and a group of mainly developed coun-
tries have been at loggerheads since May 2003 . . . over the future direction and scope of negotiations on
WIPO’s proposed Substantive Patent Law Treaty.”); Michael Warnecke, WIPO Fails to Reach Consensus
on Including Webcasts in Broadcasting Treaty, 70 Pat. Trademark & Copyright J. (BNA) 599 (Sept. 30,
2005) (describing disputes over proposed broadcasting treaty).
For some commentators, this deadlock is a salutary result. See Keith E. Maskus & Jerome H. Reichman,
The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods, 7 J. INT’L
ECON. L. 279, 312-13 (2004) (calling for moratorium on additional international intellectual property
lawmaking).
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TOWARD A HUMAN RIGHTS FRAMEWORK FOR INTELLECTUAL PROPERTY
MARCO JURÍDICO GENERAL
ping countries and their like minded nongovernmental organization (“NGO”) allies have
decamped to more sympathetic multilateral venues — most notably the World Health
Organization (“WHO”), the Food and Agriculture Organization, and the conferences of the
Convention on Biological Diversity — where they have found more fertile soil in which
to grow proposals that seek to roll back intellectual property rights or at least
eschew further expansions of the monopoly privileges they confer. Developed coun-
tries and intellectual property owners, too, are leaving the field, not for other multilateral
organizations but for bilateral and regional trade and investment treaties. The price these
countries demand for expanded market access and foreign investment is adherence to
intellectual property rules that equal or exceed those found even in the most protective
multilateral agreements.5
In this maelstrom of reaction, resistance, and regime shifting, international human
rights law is poised to become an increasingly central subject of contestation. For more than
a century, international agreements have protected certain moral and material interests of
authors, inventors, and other intellectual property creators. Until very recently, however,
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 post-World War II human rights movement, neglected by
international tribunals, governments, and legal scholars while other rights emerged from
the jurisprudential shadows.6
What little can be discerned about the intellectual property provisions of human rights
law reveals a concern for balance. Both the 1948 Universal Declaration of Human Rights
(“UDHR”) and the 1966 International Covenant on Economic, Social, and Cultural Rights
(“ICESCR” or “the Covenant”) recognize the moral and material interests of authors and
inventors7 and the right “to enjoy the arts and to share in scientific advancement and its
5 See Brian Knowlton, U.S. Plays It Tough on Copyright Rules, INT’L HERALD TRIB., Oct. 4, 2005, at 1,
available at http://www.iht.com/articles/2005/10/03/business/ iprtrade.php (“So determined is the United
States to strengthen copyright and patent protection that it is, in effect, exporting its own standards through
free trgade agreements reached with countries or regions as diverse as Australia, Singapore and Central
America.”); see also Concerns Raised Over Access to Medicines Under Trade Treaties, BRIDGES WKLY.
TRADE NEWS DIG. (Geneva, Switz.), Jul. 14, 2004, available at http://www.ictsd.org/weekly/04-07-14/
story3.htm; GRAIN, BILATERAL AGREEMENTS IMPOSING TRIPS-PLUS INTELLECTUAL PROP-
ERTY RIGHTS ON BIODIVERSITY IN DEVELOPING COUNTRIES (2005), http://www.grain.org/
rights_files/TRIPS-plus%20table_September_ 2005.pdf.
6 Recently, a few commentators have started to explore in detail specific facets of the intersection between
intellectual property law and human rights law, such as the relationship between copyright and freedom
of expression. See generally, COPYRIGHT AND FREE SPEECH: COMPARATIVE AND INTERNA-
TIONAL ANALYSES (Jonathan Griffiths & Uma Suthersanen eds., 2005); COPYRIGHT AND HUMAN
RIGHTS: FREEDOM OF EXPRESSION.
7 — INTELLECTUAL PROPERTY — PRIVACY (Paul L.C. Torremans ed., 2004) [hereinafter COPY-
RIGHT AND HUMAN RIGHTS]. 7 Universal Declaration of Human Rights art. 27, G.A. Res. 217A(III),
U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR]; International
Covenant on Economic, Social, and Cultural Rights arts. 15(1)(b), (c), Dec. 16, 1966, 993 U.N.T.S. 3, 5
[hereinafter ICESCR] (recognizing right “to benefit from the protection of the moral and material interests
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