Creating a Legal Basis for Intellectual Property Through Human Rights
Rahul Bajaj and Devarshi Mukhopadhyay
Nagpur University – NALSAR University of Law
The dawn of the 21st century has witnessed the rapid rise of the knowledge economy, through an expanding use of a large array of intellectual property rights in many contexts and dimensions. The introduction of an interdisciplinary and cross-cutting discourse which seeks to study the complex and intricate relationship between intellectual property law and human rights law has therefore captured the imagination of several intellectual property experts, human rights advocates, policymakers, and nongovernmental organizations (NGOs). While the legal relationship between these two bodies of law is still in a nascent stage, it is critical to pontificate upon the precise boundaries and implications of this deepening relationship in order to create a robust institutional and theoretical foundation that can guide and inform future policymaking, especially in the context of human rights.
Although these two rich areas of law initially progressed in virtual isolation from each other, contemporary policy dialogue focuses on the study of their relationship in solving potentially difficult problems in science, technology, and culture. In fact, their relationship also provides an academic basis for understanding patterns of governance, on the basis of the typology of a particular regime. For instance, the study of this relationship between intellectual property law and human rights helps us acquire a more nuanced understanding of possible reasons why the degree of intellectual property protection is remarkably low in developing countries in which governments typically impose fetters on the enjoyment of fundamental rights and freedoms, making them the preserve of the rich and powerful. It may also explain why socialist countries and centrally planned economies generally tend to grant limited protection to intellectual goods, on account of the cultural and ideological restraints that are imposed on individual freedom. Similarly, it also becomes possible to explain why capitalist economies provide a considerably high degree of protection to intellectual goods, irrespective of internal market structures and segmentation of rights.
It is the endeavor of the authors, therefore, to explain the creation of a legal basis for shaping intellectual property discourse through the eyes of human rights law. In addition to exploring the legal and societal ramifications of this relationship, the authors shall also analyze the connections and divergences between these two sets of rights as part of the larger objective of this paper.
In terms of argument structure, the first segment of this paper succinctly discusses the recognition of intellectual property rights as human rights. This segment, in addition to narrating the circumstances that led to the recognition of intellectual property rights as human rights through a historical narrative, briefly examines the arguments both in favor of and against this development. The remaining five segments in this paper are specifically devoted to the far-reaching effects of this interdisciplinary study on five key areas in modern policy. In order to allow for a thematic introduction, these key areas are healthcare access (second segment), participation in cultural life (third segment), gene patenting (fourth segment), the right to education (fifth segment), and the rights of indigenous peoples (sixth and final segment).
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