COMMENT–Patently Unfair: The Tensions Between Human Rights and Intellectual Property Protection
by Zachary A. Hale*
I. Introduction
With globalization and international trade policy in the political spotlight, questions about how intellectual property protection impacts the enjoyment of human rights are of increasing importance to the national and international political discourse. In recent decades, the relationship between intellectual property and fundamental human rights has attracted increasing scrutiny. While the right to protection of the “moral and material interests” of an individual’s intellectual product is enshrined in the canon of international human rights, with explicit inclusion in the Universal Declaration of Human Rights (UDHR)[1] and the International Covenant on Economic, Social, and Cultural Rights (ICESCR),[2] the dominant regime of intellectual property rights has historically come into conflict with other fundamental human rights.[3]
The system of recognition and enforcement for intellectual property rights has run afoul of human rights principles by restricting access to protections to privileged classes throughout history.[4] This paper explores the historical and contemporary conflicts between intellectual property law and human rights, arguing that the current system of intellectual property protection threatens, and even actively violates, the enjoyment of several basic human rights.
Some key issues that bring intellectual property protection into conflict with the enjoyment of human rights are restricted access to medicines, patented food products, computer software, and educational materials, as well as the protection of traditional knowledge and indigenous materials.[5] The visibility of these topics is largely due to the controversy surrounding access to HIV/AIDS treatments, the biopiracy of indigenous seed-strains, and the implementation of the Trade-Related Aspects of Intellectual Property Rights (TRIPs).[6] There are, however, many other areas where potential tensions can arise, including access to computer software and cultural and educational materials. These issues bring the protection of intellectual property interests into conflict with the rights to food, health, education, self-determination, freedom of expression, cultural participation, and the benefits of scientific progress.[7]
Because the right to protection of one’s “moral and material interests” in his or her “scientific, literary, or artistic” products is considered a basic human right,[8] the notion that intellectual property protection might conflict with the realization of human rights objectives may seem counterintuitive. The discussion of whether intellectual property protection is essentially in conflict with other human rights takes place within a broader debate over the priority of different “generations” of human rights.[9] In this context, although intellectual property is recognized in the ICESCR, a document enshrining “second generation” rights, its ideological underpinnings in the liberal philosophy of John Locke places it more comfortably alongside the “first generation” civil and political rights found in liberal-democratic constitutions. This potential misalignment has generated a tension that fuels debate around the proper interpretation of intellectual property rights in the framework of universal human rights.
The United Nation’s Economic and Social Council addressed this confusion in a 2006 comment to the ICESCR, stating that it is “important not to equate intellectual property rights with the human right recognized in article 15.”[10] Other international bodies, such as the United Nations Sub-commission on the Promotion and Protection of Human Rights, have also recognized a fundamental incompatibility between intellectual property instruments, like the TRIPs, and the enjoyment of other basic rights.[11] This interpretation, however, has been challenged within the United Nations system, with the United Nations High Commissioner for Human Rights, suggesting that intellectual property protection can coexist with human rights protection.[12]
In order to paint a clearer picture of how international intellectual property protections have developed alongside international human rights, the following section will trace their institutional history and ideological underpinnings.
II. The Institutional History of International Intellectual Property and Human Rights
A. International Intellectual Property Protection Before the United Nations
As with many institutionalized aspects of liberal philosophy, the first concrete effort at coordinating the protection of intellectual property across borders occurred in Western Europe. The issue of inconsistent intellectual property protection was brought to the fore in 1873, when Vienna’s International Exhibition of Inventions failed to attract international inventors who feared their designs would be copied and re-appropriated without consequence.[13] This inconsistency led to the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. In 1893, parties to these conventions agreed to create a single bureau to regulate intellectual property in the areas of industry (patents and trademarks) and the arts (copyright).[14] This bureau, known as the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI), consisted of fourteen member states, primarily Western European nations and their colonies, and remained the sole international body for intellectual property protection until the United Nations restructured the organization to create the World Intellectual Property Organization (WIPO) in 1960.[15]
Though the creation of WIPO signaled the transformation of the BIRPI from a keeper of European treaties to an agency responsible to the myriad member states of the UN, the undergirding philosophy of property-protection remained intact. If anything, the initial, industrialized members of the BIRPI saw its incorporation into the UN as an opportunity to introduce protection of intellectual property at the global scale.[16] However, the incorporation of member states at varying levels of development, coupled with new ideas about human rights in the international community, would eventually require the international system of intellectual property protection to adapt its instruments to a changing environment.
B. Intellectual Property and Human Rights at the United Nations
Before entering discussion of more recent institutional developments, it is germane to the object of this paper to examine the role of intellectual property in the United Nations preceding the incorporation of the WIPO. As noted above, intellectual property rights were included in the UDHR. Article 27 of the UDHR states that:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.[17]
This should not be interpreted as a consensus amongst the international community on how intellectual property should be regulated, or even on how to define the “moral and material” interests that deserved protection. As with many aspects of the UDHR, the inclusion of intellectual property was highly contested.[18] While a large number of states disagreed with Article 27, they were overpowered by states convinced of the material value of intellectual property protection. As Paul Torremans notes:
[T]he initial strong criticism that [intellectual property] was not properly speaking a Human Right or that it already attracted sufficient protection under the regime of protection afforded to property rights in general was eventually defeated by a coalition of those who primarily voted in favour because they felt that the moral rights deserved and needed protection and met the Human Rights standard and those who felt the ongoing internationalization of copyright needed a boost and that this could be a tool in this respect.[19]
This shift from discussion of intellectual property as a matter of trade law to discussion of intellectual property as a matter of human rights was furthered by the inclusion of intellectual property rights in Article 15 of the ICESCR, which took force in January of 1976. Article 15 states:
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.[20]
The sub-clauses of 15.1 are essentially a reiteration of Article 27, but the mention of “development and diffusion” in 15.2 and “co-operation in the scientific and cultural fields” in 15.4 represent a radical shift in intellectual property interpretation. The conception of innovation in terms of market value and incentive systems was being challenged by ideas about human development, as is reflected in the suggestion that “the full realization” of the human rights aspect of intellectual property requires “the diffusion of science and culture,” a suggestion that was not present in the UDHR.[21]
The Patents Cooperation Treaty (PCT),[22] arguably the most important development in international intellectual property law between the ICESCR (1976) and the TRIPs (1995), serves as an example of the continued dominance of traditional intellectual property notions, even within the diverse arena of the United Nations. The PCT came into effect under the authority of the United Nations in 1978, four years after the incorporation of the WIPO. This treaty, certainly the most consequential undertaking of the international intellectual property community since the 19th century, was engineered by a group of neoliberal economists led by Edward Brenner (US Commissioner of Patents) and Arpad Bogsch (Deputy Director of BIRPI and first Director General of WIPO) in response to the concerns of multinational corporations about international patent applicability.[23]
The PCT set out to ensure that corporations with patents enjoyed equal protection in every country. This meant that a large pharmaceutical company could prosecute pharmaceutical actors around the world for using patented formulas as a starting point for generic drugs development. This protection provides a particular advantage to companies that already hold a large number of patents, as they can use patent-extending strategies to maintain a monopoly over formulas and technologies beyond the standard twenty-year limit.[24] Thus, twelve years after United Nations member states affirmed the value of diffusing scientific and cultural knowledge in the ICESCR, the WIPO became responsible for overseeing the regulation of such knowledge through the PCT. This protection, which largely favors companies with pre-existing patents,[25] set the tone for the most controversial institutionalization of intellectual property thus far, the TRIPs.[26]
The TRIPs, established in the 1994 Uruguay Round of the General Agreements on Tariffs and Trade, was the first attempt to put forth comprehensive protection for intellectual property through the World Trade Organization (WTO).[27] This agreement represented a monumental change in the field of international intellectual property law, pushing the protection of intellectual property into the center of international trade law.[28] It forced a minimum standard of copyright and patent protection on all 162 WTO members, severely hindering the distribution and development of agricultural and pharmaceutical innovations.[29] Though there have been subsequent agreements aimed at increasing access to “essential drugs,”[30] the TRIPs and its restrictive prescriptions continue to dominate the institutional framework of international intellectual property.[31]
III. Conflict Between Intellectual Property Protection and Human Rights
Although the right to the protection of “moral and material interests resulting from any scientific, literary, or artistic production,”[32] is a human right as defined in the UDHR and the ICESCR, the current system of intellectual property protection conflicts with and even violates rights that are considered to be fundamental to human life. Although intellectual property instruments are certainly used to violate essential civil and political freedoms like the freedom of expression, and economic and social freedoms like the freedom to share in the scientific advancements of society, the most blatant violations of human rights caused by intellectual property protection occur in the fields of nutrition, healthcare, and culture.[33] Of these essential entitlements, the rights to food and health are made even more significant by their relationship to the most fundamental of all human rights: the right to life.
A. Intellectual Property Protection and the Right to Culture
The pursuit of traditional knowledge protection through standards of intellectual property is illustrative of how notions of human rights have informed actors on the contemporary international stage. The inclusion of intellectual property protection in global agreements on economic, social, and cultural rights has enabled indigenous populations to speak of a right to protection of their cultural heritage.[34] Though this claim is defensible (and, in some iterations, compelling), it is dangerous as the basis of protection in the realm of intellectual property. If we accept Kal Raustiala’s assertions that, “[a]lmost all intellectual property rights are government-granted monopoly rights,”[35] and that, “existing normative theories of intellectual property seek, among other things, to strike a balance between the public domain and private monopolies,”[36] then we must interpret these communities’ claims to intellectual property rights in relation to the place of traditional knowledge in the public domain.
Essentially, intellectual property protections like patents serve to legally remove an innovation, created in the medium of previous public knowledge, from the public domain. However, in the case of traditional knowledge concerns, such as agricultural methods and herbal medicine, this removal is necessarily temporary.[37] Thus, the protection of intellectually based components of cultural heritage is not comparable to the more permanent defense that the United Nations Educational, Scientific, and Cultural Organization[ZH1] provides for historical landmarks. Instead, patents provide a temporary protection for certain information with regards to markets and trade law. The danger here does not lie solely in the theoretical threat it poses to a healthy, creative public domain, but in the aggressive misappropriation of this knowledge at the hands of powerful forces outside the concerned community. Thus, though the argument for the protection of traditional knowledge is born of and framed in ideas of human rights, it runs the risk of taking essential elements of traditional culture out of the public domain and allowing for harmful monopolies akin to those we see in the fields of agriculture and healthcare.
B. Intellectual Property and Violations of the Right To Food
In the developing nations of the world, access to affordable food is hindered by strict protection of genetically modified seeds, [38] and harmed by the act of biopiracy.[39] This pair of issues reveals two different directions from which intellectual property protection in the agricultural sector can affect human rights. The enforcement of patents on genetically modified organisms keeps various seed prices prohibitively high for rural actors in poor nations, preventing access to resilient crop strains that could supplement production in periods of drought. This represents a structural exclusion of an entire class of agricultural actors. The act of biopiracy, on the other hand, is an aggressive act of systematic inclusion, by which multinational corporations steal agricultural practices and products of indigenous populations and exploit them via intellectual property protection (think of the Texas based RiceTec acquiring a patent on a traditionally Indian strain of Basmati rice).[40] Both of these practices have attracted criticism from non-governmental organizations and members of developing communities, but the legal efforts to prevent them are almost always overcome by the robust international system of intellectual property protection. This tide may be changing, however, as the United Nations Special Rapporteur on the right to food recently identified the application of intellectual property protection to agricultural products as a significant threat to the right to food, especially in developing countries.[41]
C. Intellectual Property Protection and the Right to Health
The harmful effect of strict patents on life-saving pharmaceuticals is the most visible structural violence perpetrated by the international intellectual property system. Even those not informed in the particulars of patent law can see the injustice in allowing millions of preventable deaths in the name of protecting massive pharmaceutical companies. The clear and offensive moral implications of this particular strain of intellectual property protection have led multilateral organizations to approve of relaxation in the case of essential medicines.[42] Both the United Nations Special Rapporteur on the right to health and the United Nations Special Rapporteur in the field of cultural rights have alerted the international community to the tensions between exclusive production and essential public access.[43] Additionally, the Global Commission on HIV and the Law has called upon the United Nations to develop a special intellectual property regime to regulate the protection of medicines in a way that protects human rights.[44]
The ability of patent-holding corporations to demand high prices for protected innovations has created avoidable public health crises around the world, and the current work towards improving this situation is challenged by agreements that aim to strengthen rather than relax international intellectual property protections. While pharmaceutical patent protection creates the most significant threats to fundamental human rights, it has also been the site of some of the most promising ideas for intellectual property reform.[45] The following section will explore alternative approaches to intellectual property protection that could expand access to technology and ensure the enjoyment of all human rights.
IV. Recommendations
The impact of increasing ideological contact between intellectual property and other human rights has become an important issue for contemporary intellectual property theorists. Laurence Helfer posits three potential paths this emerging partnership may take, based on three different interpretations of intellectual property by actors concerned with human rights: if protection of intellectual property is a legitimate human right, then rights-holders will seek to expand their claims to protection; if intellectual property protections are obstructive to a pursuit of universal rights, then rights advocates will seek to contain or limit such regimes in an effort to promote human rights; finally, if protection of intellectual property is seen to have instrumental potential with respect to other rights, it may be employed by policymakers as a means to a rights-oriented end.[46] Raustiala offers a more cautious image for the future, with rampant potential for an already vociferous intellectual property agenda to abuse human rights language in an effort to increase its regulatory power. Raustialia and Munzer discuss this potential in reference to traditional knowledge, an increasingly visible candidate for incorporation into intellectual property structures with critical implications for human rights.[47]
While conception of a system of intellectual property protection that is in complete harmony with other fundamental human rights requires a high level of intellectual flexibility, it is virtually impossible to conceive of intellectual property protection (especially in areas of agricultural and pharmaceutical innovation) assisting an agenda of distributive justice. For this reason, much of the debate surrounding intellectual property and social justice calls for the selective non-application of restrictions based on demonstrated humanitarian need.
This pursuit has been institutionalized in various exceptions to international trade regimes (especially in the case of treatment for epidemics),[48] and continues in the area of biopatents, where advocates seek the relaxation of laws restricting access to genetically-modified organisms that could help in famine-relief. Other proposed solutions involve the development of distributive commons where essential research products in biotechnology and similar fields would be made available to the global public, while other aspects of intellectual property protection remain in place. Finally, some of the most provocative re-interpretations of the current system, voiced by actors in both developed and developing nations, call for bypassing intellectual property protections altogether in favor of a more equitable distribution of and access to vital technologies.
A. Prioritizing Rights through Exceptions
One of the most appealing approaches to intellectual property reform is to work within current norms to carve out exceptions for life-saving or life-improving technologies that are currently protected by stringent patent laws. At a domestic level, this can include judicial and administrative procedures that allow the citizens of a particular nation to request exclusions and exemptions from intellectual property protection when such protection comes into conflict with the enjoyment of human rights. This solution is consistent with the United Nation’s statement that, “States have a positive obligation to provide for a robust and flexible system of patent exclusions, exceptions, and flexibilities,” in order to safeguard the human rights of citizens. At the international level, states that are negotiating agreements within and outside of the World Trade Organization can draft provisions that exempt developing nations from complying with strict patent protections, such as those found in the Trade Related Aspects of Intellectual Property.
B. Leveraging Public Funding and Creating Distributive Commons
To ensure greater access to life-saving innovations that were developed through federally funded research, government agencies can condition research support on the non-exclusive licensing of resulting products. For example, if the National Institutes of Health provide money for biotechnology research that produces a breakthrough cancer treatment, the government can require that the treatment be excluded from patent protection.[49] Similar approaches could be used in the field of agriculture, with the goal of securing public access to technologies that were developed using public money. Although this approach would not result in cost-free access, it would allow multiple organizations to develop competing products based on open-source technology, breaking the current monopolies that artificially inflate the prices of life-saving drugs for HIV/AIDS and cancer.
Intellectual property scholar James Love proposes a similar approach at the global level known as the Medical Research and Development Treaty.[50] This treaty would provide a mechanism through which wealthier nations would fund research for essential medicines to combat epidemics. Love suggests using development capital to support privately managed research in order to liberate life-saving health innovations from the cycle of patent protection.[51] This and similar approaches seek to ensure that protection of intellectual property does not prolong humanitarian crises in the name of market values. On their own, however, these models do not provide a sufficient solution to the conflicts between intellectual property protection and the enjoyment of human rights, as has been recognized by the UN.[52]
C. Seizing Innovations for the Common Good
Finally, national governments can actively prioritize the rights to health and food, as well as other fundamental human rights, over intellectual property rights by seizing the patented technology and placing it in the commons. This may seem like an unorthodox solution, similar to the land reform policies adopted by some revolutionary governments, but it is better understood as an intellectual property analogue of eminent domain takings. For example, if the government decides that it is necessary for the public good to provide unhindered access to certain pharmaceutical or agricultural innovations, it could “buy out” the patent and create a commonly available product using the previously-patented technology.
Ultimately, all three of the approaches discussed in this paper can work jointly, with particular solutions being deployed based on a situational assessment that takes into account the severity of the human rights deprivation and the likelihood that alternative approaches will sustainably improve the condition of impacted individuals.
V. Conclusion
While the conventional approach to human rights holds that they are indivisible and mutually reinforcing, the situations described above display material conflicts that occur within the current system of intellectual property protection. Because international intellectual property protection has been developed within neoliberal institutions like the WTO, it has a global tendency to reinforce the hegemonic position of those nations who industrialized early at the expense of developing countries. Additionally, within countries like the United States, instruments for intellectual property protection have been used to reassert privilege and perpetuate structural violence by robbing communities of color of their access to cultural products like music and art.
The interaction between international intellectual property protection and the protection of other human rights is not a recent phenomenon, as seen in the UDHR and the ICESCR. Their institutionalized inclusion, however, has not thus far been reciprocal; despite reference to moral and material rights relating to authorship and innovation in canonical human rights documents, modern agreements on intellectual property are strikingly devoid of human rights language.[53] Though human rights and intellectual property have philosophically distinct origins, both have become embodied in expansive international legal regimes with increasing ideological and institutional density. The widening of these once distinct policy spaces has led to overlap and confrontation in recent years, with a variety of possible outcomes.
The notion that there ought to be legal protection for intellectual innovations contains many assumptions about the nature of imagination, invention, and the nature of social progress. That ideas for art and technology should be termed intellectual property reveals a fundamental supposition that these creations are to be understood primarily in relation to a system of private ownership. That such a system of property is desirable, to the end that society’s institutions should protect it, is the core assumption of modern, “western,” liberalism that dates back to John Locke.[54] In relation to human rights, two strains of intellectual property thought have become increasingly prevalent: the first deals with the integration/mutual incorporation of human rights and intellectual property thought, while the second explores the possibilities of intellectual property as a mechanism of social justice.
As the leading industrialized nations of the world negotiate new trade instruments, issues of social equity must be elevated to the level that material profit-taking has traditionally occupied. The intellectual property protection of the future must protect fundamental human rights by ensuring access to life-saving and life-improving technologies, while continuing to respect the material and moral interests of the individuals behind these vital innovations.
* J.D., UA Little Rock, William H. Bowen School of Law, May 2018; Master of Public Service, Clinton School of Public Service, May 2018.
[1] G.A. Res. 217 (III) A art. 27(2), Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR].
[2] International Covenant on Economic, Social and Cultural Rights, art. 15(1)(C), Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3. [hereinafter ICESCR].
[3] See e.g., UDHR, supra note 1, at art. 27(1); ICESCR, supra note 2, at art. 15(1)(A),(B).
[4] K.J. Greene, Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, 16 Am. U. J. Gender Soc. Policy & L. 365, 366 (2008).
[5] Peter K. Yu, Ten Common Questions About Intellectual Property and Human Rights, 23 Ga. St. U. L. Rev. 709, 719 (2007).
[6] Id. at 745; See also, Chidi Oguamanam, Indigenous Peoples’ Rights at the Intersection of Human Rights and Intellectual Property Rights, 18 Marq. Intell. Prop. L. Rev. 261, 265 (2014) (“[A]t no time has the empirical importance of the relationship between [human rights] and [intellectual property rights] been more palpable than the period beginning in the mid-1990s, and symbolized by the coming into effect of the Trade-Related Agreement on Intellectual Property Rights . . .”)
[7] Yu, supra note 5, at 719.
[8] UDHR, supra note 1, at art. 27(2); ICESCR, supra note 2, at art. 15(1)(c).
[9] In broad terms, this debate pits “first generation” civil and political rights, which are interpreted to have their origin in eighteenth century liberal philosophy, against “second generation” economic and social rights, which are affiliated more with nineteenth and twentieth century socialism. Peter K. Yu, Reconceptualizing Intellectual Property Interests in A Human Rights Framework, 40 U. CAL. DAVIS L. REV. 1039, 1074, 1149 (2007).
[10] U.N. Econ. & Soc. Council, Comm. on Econ., Soc. & Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He or She Is the Author (Article 15, Paragraph 1(c), of the Covenant), U.N. Doc. E/C.12/GC/17 (Jan. 12, 2006), available at http://www.refworld.org/docid/441543594.html
[11] Yu, supra note 5, at 710.
[12] Id.
[13] World Intellectual Property Organization -A Brief History, World Intellectual Property Organization , http://www.wipo.int/about-wipo/en/history.html (last visited March 12, 2016).
[14] Id.; See also, Linda M. Lee, Note, The Global Harmony Ouroboros: World Intellectual Property Organization ‘s Mission Statement and Its Futile Role in an Economic Legal System, 67 Rutgers U.L. Rev. 1591, 1597 (2015) (“The signatory nations embarked on an urgent mission to “harmonize” intellectual property laws on a global scale to facilitate trade and protect the works of its own nationals.”).
[15] World Intellectual Property Organization -A Brief History, supra note 13.
[16] Debora J. Halbert, The World Intellectual Property Organization: Past, Present and Future, 54 J. Copyright Socy. U.S.A. 253, 259 (2007). This ambition is reflected in the choice of the word “world” rather than “international” to describe the organization, implying a more universal scope for intellectual property. Id.
[17] UDHR at art. 27.
[18] Yu, supra note 5, at 714.
[19] Paul Torremans, Copyright and Human Rights: Freedom of Expression, Intellectual Property, Privacy 6, (2004).
[20] ICESCR, supra note 2, at art. 15.
[21] Id.
[22] Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645, 1160 U.N.T.S. 231.
[23] Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda 42, (2007).
[24] Rep. of the Special Rapporteur in the field of cultural rights, ¶ 27, U.N. Doc. A/70/279, (2015) [hereinafter “Special Rapporteur”]. Speaking of intellectual property practices that threaten human rights, the United Nations’ Special Rapporteur in the field of cultural rights explains, “[o]f concern is the patenting of second or third (etcetera) uses of products, in particular medicines, and more generally the practice of ever-greening, which, through minor or artificial improvements, extends the life of patents beyond the time limit of 20 years.” Id.
[26] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,1869 U.N.T.S. 299, 33 I.L.M. 1197.
[27] Charles R. McManis, Teaching Current Trends and Future Developments in Intellectual Property, 52 St. Louis U. L.J. 855, 856 (2008).
[28] Id.
[29] David Hulme, Global Poverty: How Global Governance is Failing the Poor 155, (2010).
[30] Essential drugs include treatments for “acute respiratory infections, HIV/AIDS, malaria, diarrhoeal diseases, tuberculosis and the complications of measles.” World Health Organization [WHO], WHO Medicines Strategy: Framework for Action in Essential Drugs and Medicines Policy, at 1, WHO/EDM/2000.1 (2000), http://apps.who.int/medicinedocs/en/d/Jwhozip16e/ One such relaxation occurred through the World Trade Organization’s 2003 “Motta text” agreement, which aimed to “provide cheap medicines to the poor people.” European Union [EU], Background info on the TRIPs Health deal, Trade Websites: European Commission, trade.ec.europa.eu/doclib/html/113654.htm (last visited May 11, 2016).
[31] In fact, adjustments made to facilitate importation of generic drugs may have increased barriers to access for essential medicines by imposing more burdensome requirements for monitoring licensing exceptions. James Thuo Gathii, The High Stakes of WTO Reform, 104 Mich. L. Rev. 1361, 1368 (2006).
[32] UDHR, supra note 1, at art. 27(2); ICESCR, supra note 2, at art. 15(1)(c).
[33] See Yu, supra note 5. Yu describes the difference in severity between restrictions on access to healthcare and restrictions on access to culture as, “the difference between dying now and dying slowly later.” Id.
[34] Stephen R. Munzer & Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37, 40 (2009).
[35] Id.
[36] Id. at 41.
[37] As explained in Raustiala’s statement, “all patents and copyrights eventually end, and the protected creation enters the public domain. Current patent and copyright law generally treat traditional knowledge as if it were already in the public domain; proponents of traditional knowledge rights generally seek to take it out of the public domain, and to do so forever.” Id. at 53.
[38] Sebastian Haunss & Kenneth C. Shadlen, Politics of Intellectual Property: Contestation Over the Ownership, Use, and Control of Knowledge and Information, (2009).
[39] Biopiracy is, “the ‘unauthorized and uncompensated expropriation of traditional knowledge and resources.’” Michael Woods, Food for Thought: The Biopiracy of Jasmine and Basmati Rice, 13 Alb. L.J. Sci. & Tech. 123, 134 (2002)
[40] Id. at 138.
[41] Special Rapporteur, supra note 24, at ¶ 52.
[42] See, e.g., WHO, supra note 30.
[43] Special Rapporteur, supra note 24, at ¶ 51.
[44] Id.
[45] See James Love, Measures to Enhance Access to Medical Technologies, and New Methods of Stimulating Medical, 40 UC Davis L. Rev. 679, 696-705 (2007).
[46] Laurence R. Helfer, Toward A Human Rights Framework for Intellectual Property, 40 U. Cal. Davis L. Rev. 971, 979 (2007).
[47] Munzer & Raustiala, supra note 35, at 40.
[48] Frank Pasquale, Access to Medicine in an Era of Fractal Inequality, 19 Annals Health L. 269, 308 (2010) (“Internationally, some intellectual property laws governing pharmaceuticals grant poor countries the right to compulsorily license lifesaving drugs in times of emergency.”).
[49] See Peter Lee, Toward A Distributive Commons in Patent Law, 2009 Wis. L. Rev. 917, 1008 (2009). Peter Lee also proposes using the NIH to “enhance access to federally funded medicines in low-income countries.” Id.
[50] See Love, supra note 32, at 696-705.
[51] Id.
[52] See Special Rapporteur, supra note 24, at ¶ 103 (“alternative policies for incentivizing technological development are important, but remain too scarce to meet human rights objectives, including the right to health.”).
[53] Helfer, supra note 47, at 979.
[54] See Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 288, 295–300 (1988). Hughes suggests that the justification for ascribing ownership of intellectual property can be linked to the “Lockean ‘labor theory,’ which informed our Constitution’s vision of property.” Id. at 288.
[ZH1]UNESCO