Toward a Human Rights Framework for Intellectual Property

This Article, prepared for a Symposium on Intellectual Property and Social Justice held at the University of California at Davis School of Law in March 2006, addresses the growing intersection of human rights law and intellectual property law. Its principal point of departure is a November 2005 General Comment on "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 is the author" - a relatively obscure provision of the International Covenant on Economic, Social and Cultural Rights. The Article builds upon the analysis in the General Comment to sketch the tentative outlines of a human rights framework for intellectual property, a framework that offers a distinctive approach for mediating the two fields of law and policy. The Article also analyzes the rapidly changing institutional environment in which states and NGOs are generating new legal rules to govern the interface between human rights and intellectual property. It focuses in particular on three recent treaty-making initiatives in three intergovernmental organizations - UNESCO, WHO, and WIPO. These initiatives include (1) the recently adopted Convention on the Protection and Promotion of the Diversity of Cultural Expressions, (2) the proposed Medical Research and Development Treaty, and (3) the proposed Access to Knowledge Treaty. Each of these treaty texts draws upon international human rights law in different ways to question existing approaches to intellectual property protection and to revise the mandates of intergovernmental organizations