Human Rights and Intellectual Property: Conflict or Co-Existence?

DOI10.1177/016934410402200202
Publication Date01 June 2004
AuthorLaurence R. Helfer
SubjectPart A: Article
HUMAN RIGHTS AND INTELLECTUAL PROPERTY:
CONFLICT OR CO-EXISTENCE?
LAURENCE R. HELFER*
Abstract
Human rights bodies within the United Nations have given unprecedented attention
to intellectual property issues over the past four years, addressing important and
contested issues such as patented medicines, digital copyrights, transfers of technology,
and the effect of intellectual property rights on economic development. This emerging
human rights approach to intellectual property is often critical of existing standards of
protection and it seeks to address legal and policy issues that intellectual property treaty
makers and legislators often ignore. This article analyses two competing frameworks
that States, NGOs, and inter-governmental organisations are using to conceptualise
the increasingly contested intersection of human rights law and intellectual property
law. It traces the evolution of these two approaches and explores their consequences for
the international legal system.
1. INTRODUCTION: CONFLICT OR CO-EXISTENCE?
Human rights and intellectual property, two bodies of law that were once
strangers are now becoming increasingly intimate bedfellows. For decades
the two subjects developed in virtual isolation from each other. But in the
last few years, international standard setting activities have begun to map
previously uncharted intersections between intellectual property law on the
one hand and human rights law on the other.
Exactly how this new-found relationship will evolve is being actively
studied – and sometimes even fought over – by States and non-governmental
organisations (NGOs) in international venues such as the World Intellectual
Property Organization (WIPO), the UN Commission on Human Rights and
the Sub-Commission on the Promotion and Protection of Human Rights, the
World Trade Organization (WTO), the World Health Organization (WHO),
and the Conference of the Parties to the Convention on Biological Diversity
(CBD). A review of the lawmaking underway in these fora reveals two distinct
PART A: ARTICLES
Netherlands Quarterly of Human Rights, Vol. 22/2, 167-179, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 167
* Fellow, Program in Law and Public Affairs, Princeton University and Professor of Law and
Lloyd Trevis Fellow, Loyola Law School, Los Angeles. This article is based on a paper
presented at the Association of American Law Schools (AALS) Annual Meeting in January
2003, at a joint programme sponsored by the human rights and intellectual property sections
of the AALS. My thanks to Dan Burk for inviting me to participate in this program and to
David Weissbrodt and Ruth Okediji for their insightful comments.

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