Intellectual Property Rights as Human Rights: Patent Protection and the Right to Health

By Mirela V. Hristova

Excerpt from Are Intellectual Property Rights Human Rights? Patent Protection and the Right to Health, 93 J. Pat. & Trademark Off. Soc'y 339 (November 2011)

A Burgeoning Conflict

Laurence Heifer has famously observed that - while intellectual property and human rights "were once strangers[,]" and have "[f]or decades . . . developed in virtual isolation from each other[,]" they are now becoming "increasingly intimate bedfellows[,]" as "international standard setting activities have begun to map previously unchartered intersections between intellectual property law on the one hand and human rights law on the other." 1 This interaction escalated after the Agreement on Trade-Related Aspects of International Property Rights ("TRIPS Agreement") entered into force in 1994, and spurred the proliferation of increasingly stringent intellectual property rules. 2 As a result, states and institutional actors have been facing a variety of dilemmas, which stem from an inability to give full effect to intellectual property rules, and to simultaneously comply with various obligations under international human rights law. 3 For example, strict patents on pharmaceutical products and processes have given rise to widespread concern about the cost of medicines, and the extent to which the poor's access to life-saving care and treatment is restricted. Thus, drug patents create an inexorable tension between the public's right to health and well-being, and exclusivity, which incentivizes the development of drugs in the first place.

Evaluating the burgeoning interaction between intellectual property rights and human rights is to a great extent contingent on whether the former are of purely legal character, or whether they can be classified as human rights themselves. 4 Therefore, this paper first sets out to examine the specific characteristics ...

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