Patents and Human Rights: Where Is the Paradox?
Files
Description
There is an emerging trend, particularly in international and European circles, to bemoan what is termed the human rights paradox in intellectual property. Thus, it is claimed that intellectual property rights are grounded in fundamental concepts of human dignity and just deserts, in a commitment to accord to creators the benefits of their intellectual efforts. At the same time, however, it is recognized that intellectual property rights protect information, a non-rivalrous good. The paradox is said to arise when one human right is pitted against another, when intellectual property rights are used to restrict access to information that could—at no real cost to the developer—be deployed in ways that satisfy fundamental human needs. In a sense, it is not difficult to understand why this concern has emerged. At the international level, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) both articulate commitments to the rights of creators; the European Convention on Human Rights (ECHR) can be read in a parallel fashion. At the same time, however, all of these instruments recognize rights that require access to the fruits of creativity. As these commitments become enforceable in courts of law, the stage is set for a clash between the right to control information and the right to use it for such purposes as attaining health and education, participating in cultural activities, engaging in expressive conduct, or freely pursuing intellectual inquiry. But is there really a paradox here and is it related to patents? My thesis is that the equation of intellectual property rights generally—and patent rights in particular—to human rights is belied by the historical evolution of these rights and negated structurally, by the manner in which claims to intellectual products are recognized in legislative enactments and international instruments. As a theoretical matter, there are clearly dimensions to intellectual property that sound in human rights concerns (rights to protect one’s dignity, to be compensated for one’s labor, and to enjoy one’s property without arbitrary governmental interference). But at least on the patent side, there is little reason to think that the human rights concerns associated with creative labor must be furthered by recognizing a right to full control over the information that creative labor produces Elevating intellectual property rights to human rights has unfortunate pragmatic consequences. 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. (Or to put it another way, every incursion on a patent right would need to be justified by showing that it involved an interest that is not only socially desirable, but that can also be categorized as a human right.) 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. This chapter lays out the historical, structural, and economic evidence undermining the equation of patent rights and human rights. It then tries t to understand the source of the rhetorical incarnation of patent rights as human rights. It ends with examples of how a utilitarian justification for patent rights is better suited to the task of furthering social welfare. Nothing here is intended to refute the claim that there are social interests that conflict with patent rights, to deny that some of these interests can be characterized as human rights, or to quarrel with the strategy of using human rights justifications to advance social welfare. My focus is limited to the question whether the debate over the balance between the interests of the public and patentees should be structured as a contest among human rights.
Source Publication
Intellectual Property and Human Rights: A Paradox
Source Editors/Authors
Willem Grosheide
Publication Date
2010
Recommended Citation
Dreyfuss, Rochelle C., "Patents and Human Rights: Where Is the Paradox?" (2010). Faculty Chapters. 1185.
https://gretchen.law.nyu.edu/fac-chapt/1185
