Chelsea Bodimeade, Felicity Deane, Evolving theory of IP rights: promoting human rights in the Agreement on Trade-Related Aspects of Intellectual Property Rights, Journal of Intellectual Property Law & Practice, Volume 18, Issue 8, August 2023, Pages 603–614, https://doi.org/10.1093/jiplp/jpad056
Navbar Search Filter Mobile Enter search term Search Navbar Search Filter Enter search term Search The authorsThe human impacts of IP rules have been identified by theorists, scholars and policymakers. In recognizing that at times rights can conflict has led to some consideration about what regimes should try to achieve. Presently, the existing multilateral and minimum standard world trade IP rules remain focused on personal rights to property and economic return. This reflects the underpinning motivation of the USA during negotiations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. 1 During a period of heightened knowledge and technology transfer in response to climate change, pandemics and other global emergencies, this oversight of the current international IP regime could have perverse impacts, particularly on vulnerable Global South countries. For this reason, this article argues that IP rules must be balanced with universal human rights to ensure new knowledge can benefit all people and not just authors, creators and inventors.
Recognition of IP rights is ‘designed to encourage innovation and facilitate trade in technology’. 2 As the first comprehensive agreement to establish international minimum IP rights standards between most of the world’s trading nations, the WTO’s TRIPS Agreement was considered a ‘revolution in international intellectual property law’. 3 Along with minimum IP protections, technology transfer obligations to the Global South are also imposed on WTO Members under this instrument. 4 However, commentators maintain that the TRIPS Agreement has not been effectively implemented to achieve this secondary requirement. 5 On this basis, this article argues that the TRIPS Agreement must prioritize human rights in accordance with contemporary IP legal theory. Rather than only proposing that change is needed, this paper provides textual amendments to key provisions within the TRIPS Agreement. The importance in correctly steering the global IP agenda should not be overlooked. Indeed, the TRIPS Agreement language has informed provisions in other regional trade agreements (RTAs), most recently in the Regional Comprehensive Economic Partnership (RCEP). 6
This argument proceeds in three parts. First, the theories for IP rights are examined to demonstrate the evolution of their justification. This analysis demonstrates that rather than championing only the rights of the author, creator or inventor, we must consider the impacts of restrictive IP laws on the broader community. In problems such as climate change and pandemics, this community is global in nature; hence, the circle of concern is far broader than any domestic jurisdiction. Next, we highlight how the TRIPS Agreement does not encourage the prioritization of human rights but rather the protection of creators’ IP. 7 Finally, we respond by recommending textual amendments to the TRIPS Agreement to support a more balanced approach in the multilateral IP regime. These amendments are necessarily minor but may be enough to ensure that global IP standards fulfil their purpose at being effective and fair.
To understand how to facilitate adequate technology transfer necessary to respond to global emergencies, the purpose of IP law governing such transfer must first be theoretically examined. The importance of the theory of IP law is compounded when considering the power technology yields in international trade relations, particularly when it is used as a bargaining chip. As Shaffer notes:
Technology can be ‘weaponized’ by withholding key components in a trade war or in an actual conflict. More broadly, technology is now a key part of geoeconomic rivalry in which economic predominance and technological independence become part of national security. 8
Technology transfer therefore requires a balanced approach. Support for this can be found throughout IP discourse in relation to the purpose of rights protection. In this section, we explain how the evolution of the philosophical justification for IP rights highlights that the importance of protecting human rights for potential technology users can be equally important as protecting the interests of the IP rights holder.
Traditional western property rights are associated with the rights of the individual. That is, ownership bestows various rights, such as the right to exclude and the right to alienate. 9 Western thought dictates that these rights must exist for possession to be regarded as a legitimate relationship with property. Without property rights for individuals, the foundational elements of western legal arrangements such as ‘communal ownership and management of important resources’ would be viewed as ‘strange, unworkable, or even contrary to human nature’. 10 The social construct of exclusive and individual property rights underpins the tradition of IP law.
Traditional debate on the theory of IP rights focused on the systems of thought developed by Locke, Hegel and Kant. Their justifications reasoned that rights to IP are required to realize and respect important aspects of the human condition and experience. 11 For Locke, ownership of self and one’s labour gives rise to entitlement to the results of this labour and the existence of property rights. 12 This school of thought is transplanted into the IP domain by protecting creators’ inventions and works as property. 13 In the case of Hegel’s personhood theory, ownership follows as a matter of course because a creator’s work manifests into the creator’s self. 14 Kant’s work is also derived from a similar ‘personality theory’ which emphasizes that individual autonomy is not in a right to an object, but in one’s own person. 15 Property rights were therefore considered a vehicle to personal freedom. 16
The narrow focus on the individual creator invited criticism of these theories as justification of intellectual property rights. 17 One point of opposition is that these traditional arguments postulate only intrinsic and natural rights to IP which are immune from any consideration of their consequences, namely the effect on the rights of freedoms of others beyond the creator. 18 Furthermore, these ideas were the construct of western theorists and largely ignore the impact restrictive rights have on the broader community, particularly the Global South. This counterargument supports a critical change in the evolution of IP rights. That is, the rights of the individual should not be prioritized over the rights of community. Drahos has labelled the property rights theory of IP as ‘proprietarianism’ and declared it not a theory of property but rather ‘a creed and an attitude which inclines its holders towards a property fundamentalism. The consequence within normative theory is that property interests are continuously given a moral primacy’. 19 If this individual and moral primacy is championed over other rights, important needs of the global community will be negatively impacted due to their disregard by IP law underpinned by proprietarianism.
In response to this narrow focus on the individual creator, a new wave of debate grounded in societal values and utilitarian theories surfaced in the IP literature. Scholars argued that the level of protection afforded by IP laws should be granted based on the benefit obtained by the community. 20 In this sense, IP rights were branded as a reward and incentive to ‘promoting the general public good by protecting creativity and inventiveness in areas of art and science’. 21 Due to a focus on outcomes, the utilitarian theory is positioned as a ‘consequentialist’ approach and therefore an appropriate response to the shortcomings of proprietarianism discussed earlier. 22
However, the utilitarian theory has also attracted criticism for its connection to wealth maximization. 23 This critique is famously summarized by distinguished IP scholar and economist, Machlup, who stated that ‘no economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss to society’. 24 Furthermore, for IP regimes to achieve a predetermined value of utility, an immense amount of background research is required to understand the markets that IP rights operate within. However, this information is difficult to quantify because IP markets are inherently uncertain and in constant flux. These epistemological dependencies preclude IP from firm, utilitarian justification. Thus, although not without its merits, the utilitarian theory is also insufficient to completely justify IP rights because reaching overall beneficial outcomes cannot be achieved in a meaningful and practical way.
Instrumentalism is the most recent evolution of IP theory. It was proffered to overcome the shortcomings of the property rights and utilitarian theories that are inadequate to underpin IP regimes. 25 The instrumentalist theory of IP promotes both the rights of the creator and others in accordance with human rights instruments. 26 Instrumentalism is a theory that has evolved from the limitations of the property rights and utilitarian theories for two reasons. First, it does not give ‘priority ranking over other kinds of rights and interests’ including the ethical duties to allow others to benefit from innovation. 27 Second, it utilizes the community values of human dignity already codified in international human rights law. 28 Therefore, value judgments previously overlooked by the property rights theories and insufficiently considered by utilitarian theory will be sufficiently reflected upon where IP rights adopt the instrumentalist theory.
Implementing regimes designed in support of instrumentalism will arguably lead to more optimal outcomes because human rights law serves as a complementary tool to IP law. This is because protecting human rights of knowledge users should be considered when IP rights, which inhibit the liberty of all other than the rights holder, are enforced. 29 This is particularly the case when knowledge connected to essential medicines is protected. Furthermore, when knowledge associated with climate technology is limited for the benefit of the rights holder, there is potential to cause long-term impacts on the rest of the world. 30
The consideration of human rights by proponents of instrumentalist theory offers a guide to IP rights policy and practice. However, this theory still requires prioritization of competing interests. Indeed, IP can potentially impact upon any number of human rights including the right to health, the right to cultural participation, the right to education, the right to food, indigenous people’s rights and undoubtedly the right to own property. Although it is not our intention here to suggest that any of these is more important than the next, we have focused on the human right that encompasses the duties in conflict with the limitations imposed by IP protection. That is the right to enjoy scientific progress and its applications.
In order to support technological innovation in the Global South, we argue that IP laws should be drafted to consider the human right to technology transfer. Article 27 of the Universal Declaration of Human Rights (UDHR) and Article 15(1)(b) of the International Covenant on Social, Economic and Cultural Rights (ICSECR) guarantee the right to enjoy the benefits of scientific progress and its applications (REBSPA). 31 The REBSPA recognizes the ability of technology to transform the knowledge outputs of scientific research into products that solve problems and improve human life. 32 Hence, some IP rights come with responsibilities. Interestingly, the two rights pronounced by Article 27 of the UDHR are in fact dependent on each other. As noted:
Scientific research depends on the ability to examine, verify, and apply the findings of others. Increasing protections of intellectual property and data privacy threaten the scientific freedom to access the information necessary for research, especially in low and middle-income countries and among disadvantaged populations of high-income countries. 33
The status of the REBSPA within the international human rights regime has largely been overshadowed by the rights of IP creators. It was not until 2012 that the Special Rapporteur in the Field of Cultural Rights was appointed to protect the right. 34 Since then, this body has only released three reports on the REBSPA. 35 The human immunodeficiency virus (HIV) epidemics and famines in Africa exemplify the underdeveloped nature of the REBSPA. 36 During this time, the international community called for efforts to protect the rights of health and food. 37 However, the role of technology to provide advanced HIV medicine and food technologies was yet to be considered by scholars, activists or organizations. 38 The REBSPA has also remained relatively unexamined in academic discourse. Chapman described the right as ‘so obscure and its interpretation so neglected that the overwhelming majority of human rights advocates, governments, and international human rights bodies appear to be oblivious to its existence’. 39 As a result, the REBSPA has received limited articulation in the 70 years since its introduction into the international human rights regime.
In more recent times, notable action has been taken to recognize and circumvent past disregard of the REBSPA. In 2009, the Venice Statement on the REBSPA (Venice Statement) culminated the first international expert discussion of the human right. 40 The Venice Statement examined the content of the REBSPA to include non-discriminatory enjoyment of the applications of the benefits of science by way of technology transfer. 41 The Venice Statement also urged that the application of human rights, in particular the REBSPA, to the IP regime will ‘ensure that science and technology policy serve human needs in addition to economic prosperity’. 42 This recognition by the Venice Statement of the REBSPA firmly declares it an important human right but also affirms that the human dignity attached to technology transfer is unequivocal.
Overall, the intersection between IP law and human rights law is clear. The instrumentalist approach recognizes the responsibilities IP rights holders have to the community. Just as property rights to land include responsibilities, so should property rights to knowledge. This responsibility accompanies all new technologies but is particularly important when we consider essential innovations in medicine and climate technologies. The REBSPA underpins the obligation of developed economies to support technology transfer to the Global South. 43 This human right ensures access to technology by individuals in a way that benefits them. Therefore, legal protection of IP rights should not only favour the promotion of commercial interests but also balance the benefits to individuals afforded by fair shares in scientific development. However, analysis of the TRIPS Agreement shows that it fails to strike this balance. We argue that this could be a result of the origins of the TRIPS Agreement development.
The TRIPS Agreement is a far-reaching agreement that was negotiated with the intention of establishing minimum IP standards for WTO Members. Prior to the formation of TRIPS Agreement, there were pre-existing conventions, administered by the World Intellectual Property Organization (WIPO). 44 This system included agreements enacted since the 19th century, including the Paris Convention for the Protection of Industrial Property adopted in 1883 and the Berne Convention for the Protection of Literary and Artistic Works adopted in 1886. 45 However, neither of these conventions had any mechanisms for dispute settlement and was largely unenforceable. Therefore, prior to the TRIPS Agreement, the US government unilaterally encouraged IP protection in the domestic frameworks of their trading partners. 46 This led commentators to label the negotiation history of the TRIPS Agreement as economic coercion tactics by the USA in the form of ‘trade threats and retaliation’. 47
With this in mind, it is perhaps unsurprising that failure of the TRIPS Agreement to support human rights of knowledge users has been acknowledged and has attracted intense criticism. 48 For example, interest in this domain was triggered by Resolution 2000/7 of the former Human Rights Sub-Commission. 49 This resolution highlighted various conflicts between the TRIPS Agreement and human rights, particularly in areas related to technology transfer to Global South countries. 50 The Sub-Commission affirmed that the TRIPS Agreement ‘does not adequately reflect the fundamental nature and indivisibility of all human rights’. 51 Since this time, the relationship between IP rights and human rights continues to be the subject of various United Nations discussions. These include the Human Rights Commission, 52 the Sub-Commission on Human Rights, 53 the Special Rapporteurs, the Human Rights Council, 54 the Committee on Economic, Social and Cultural Rights, 55 the Committee on the Rights of the Child and the High Commissioner for Human Rights. 56
Reviews of the TRIPS Agreement are in consensus that it does little in terms of promotion of human rights. Although minimum standards of IP rights relevant to international technology transfer are provided, Global South countries have increasingly argued that it does not achieve enough. 57 Rather, the political power of Global North countries was used to steer and leverage stronger IP laws to prioritize the property rights of the knowledge creator and secure economic gain with only token references to knowledge users. 58 Hence, concerns for the operation of the TRIPS Agreement to promote economic and commercial outcomes inevitably arise. 59
It is critical that the TRIPS Agreement, as the international minimum standard, contemplates the human rights impacts on individuals and the importance of disseminating technology breakthroughs to vulnerable populations in the Global South. However, this is not the case at present as the power of the TRIPS Agreement is focused on the impacts on commercial entities by strengthening protection of IP rights holders to secure economic gain.
The overall rationale for the current IP rules contained in the TRIPS Agreement has long been linked to economic growth. Expressed in patriotic terms, such as ‘intellectual property fuels economic development and drives growth’ and ‘intellectual property protection boosts multilateral/bilateral trade and investment’, IP rules have amassed a sacred status. 60 While climate change and the Coronavirus pandemic have caused this mantra to be challenged in recent decades, 61 efforts to reform have done little to modify the WTO’s focus on trade and economic development in a commercial sense. 62 Indeed, the overall substantive standards required by the TRIPS Agreement were set higher than any other WIPO-administered treaty. 63 These standards have measurable outcomes, such as 20-year protection minimum, 64 whereas technology transfer requirements are without measurable standards. 65 Furthermore, these strict standards for IP rights in the TRIPS Agreement are adjudicated by the WTO’s Dispute Settlement Body (DSB), which is an enforceability measure that remains absent in other WIPO-administered treaties. 66 As a result, the TRIPS Agreement has remained largely impervious to equality issues. 67
The specific wording of the TRIPS Agreement also does not ensure that technology transfer occurs to support the best outcomes for individuals and communities of the Global South. This is particularly apparent in the preamble and the principles and objectives provisions, namely Articles 7 and 8. Commentators argue that these provisions have acquired a constitutional function with central relevance when interpreting other provisions. 68 In this respect, the main objective of the TRIPS Agreement as stated in the preamble is ‘to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade’. 69 Yet, this article provides a general goal rather than measurable outcomes. Enforcement of such a standard through dispute settlement has proven to be difficult for Global South countries. 70
In summary, IP law implies consideration of social interests by virtue of its balance between private and public interests. Yet, rather than being designed to reflect this, the overall thrust of the TRIPS Agreement is the promotion of technological development through the provision of commercial incentives. 71 Despite allusion to rights of authors, inventors and others, the reason for doing so lies in ‘efforts to create mechanisms to realise the putative economic and instrumental benefits of protecting intellectual property’ rights and not in ‘deontological claims about the inherent needs or attributes of human beings’. 72 The few references to human rights in the TRIPS Agreement are therefore considered exceptions to the rule, rather than the guiding principles themselves. 73 As a result, realization of the REBSPA human right in the TRIPS Agreement that would support meaningful technology transfer to the Global South has been eclipsed by overemphasis on the expansion of IP rights in support of commercial entities and incentives. In this respect, the TRIPS Agreement is deemed inadequate to facilitate meaningful and necessary technological innovation through technology transfer to the Global South because its promotion of commercial interests does not prioritize knowledge users in accordance with instrumentalism. Hence, we pose the question as to whether the substance of the TRIPS Agreement should be revised to respond to contemporary global challenges that can and must be addressed by new knowledge.
The commercial focus of the TRIPS Agreement obstructs human rights considerations required under the current IP law theory. Here, we make proposals for amendments to the text of the TRIPS Agreement as the first step to negotiating pathways forward to achieve a balance in the protection of human rights necessary for economic development of the Global South. First, we argue that there is capacity within the TRIPS Agreement to support human rights. Next, informed by a human rights critique of significant and current TRIPS Agreement provisions, this paper proposes minor textual amendments.
Although the TRIPS Agreement does not currently protect human rights beyond the IP right holder, this does not preclude it from having the necessary capacity to do so in the future. As the first comprehensive agreement to establish international minimum IP rights standards between most of the world’s trading nations, the TRIPS Agreement was considered a ‘revolution in international intellectual property law’. 74 The significance of the TRIPS Agreement led to widespread critique of it. In particular, discussion was triggered about the relationship between human rights and the TRIPS Agreement from three main sources. First, the TRIPS Agreement introduced a new era of IP law characterized by the globalization of high minimum standards of protection termed the ‘Global Period’. 75 Naturally, such integration of worldwide processes prompts human rights discussions as the impacts will be felt in countries all over the world and may be disproportionate in the Global South. Second, in its position as the first international treaty to cover all aspects of IP protections, the TRIPS Agreement’s clear impact on public goods is apparent. 76 To explain, where knowledge had been openly shared in some jurisdictions, it was now to be subject to rights to exclude others. Finally, the TRIPS Agreement made it easier to assess the impact of IP rights on human rights because it refined the scope and normative content of many economic, social and cultural rights that were previously unclear. 77 Prior to adoption of the TRIPS Agreement, international IP law was a flexible normative system where local situations and domestic interests determined how countries would adjust their international commitments. 78 Although the TRIPS Agreement includes flexibilities, these would not be enough for Member States to maintain their autonomy in relation to IP rights. Therefore, although this paper previously argued that the TRIPS Agreement does not presently and adequately prioritize human rights, it has the necessary mechanisms inherently within it to support human rights due to a unique negotiation history.
The scope of this paper is confined to the principles and objectives provisions of the TRIPS Agreement. Articles 7 and 8 and the preamble provide the ‘goals and principles’ for the TRIPS Agreement. 79 We focus on these provisions because all others must be ‘read in light of’ these, 80 which means in any dispute where meaning is ambiguous, each of these articles should be considered. 81 For this reason, we focus on the current wording and propose reform to the preamble, Articles 7 and 8. The position of these provisions as overarching and principled guidelines also moves to justify the necessity for the implementation of these amendments. Furthermore, change to these provisions will be easier to effect because they do not furnish a basis for re-negotiating other more substantive and prescriptive contents of the TRIPS Agreement. 82
The preamble includes justifications for the TRIPS Agreement with the first paragraph setting out what was said to be the original intention of Member States:
to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure the measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade. 83
The preamble was intended to reflect both the Global North and South perspectives given in the Punta del Este Declaration and Mid-term Review Decision of April 1989. 84 In fact, the final conclusion of the TRIPS Agreement was primarily owed to affirmation of the divergent objectives of the Global North and Global South in the preamble. 85 For example, the Global North’s desire for higher standards of IP rights was reflected in paragraph four of the preamble while juxtaposed on the other hand with paragraphs five and six which recognize the public policy objectives of the Global South. In its position outside the proscriptive articles of the TRIPS Agreement, the preamble is ‘designed to establish a definitive record of the intention and purpose of the parties in entering into the Agreement’. 86 Therefore, the preamble provides WTO Panels, Appellate Bodies, government officials and magistrates interpretive guidance when the wording of a provision is unclear or ‘susceptible to divergent interpretations’. 87 This aligns with international rules on treaty interpretation. 88
However, analysis of the history of disputes utilizing the preamble demonstrates that this divergent agenda of the preamble has primarily benefitted only the Global North to advance commercial interests. This is not to say that Global South countries did not value their recognition in preambular clauses. For example, in Canada-Patent Protection of Pharmaceutical Products, 89 Colombia, 90 Cuba, 91 India and Thailand relied on the preamble to interpret Article 30. 92 However, Global South perspectives in the preamble have largely been abandoned as a result of the Global North’s strategic reliance on the commercial aspects of the preamble, namely paragraph four, in isolation from other relevant, binding provisions in the TRIPS Agreement. 93
This is evidenced by Appellate Bodies, Panels and parties’ approach to interpreting the impact of the preamble compared to relying on Article 7 despite the latter being an operative and binding provision. Indeed, Article 7 supports technology transfer and knowledge users in a way that the preamble does not. Rather than considering these provisions collectively, sole use of the preamble for the benefit and defence of Global North perspectives was adopted in numerous cases. In India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, interpretation was declared consistent with the ‘object and purpose of the TRIPS Agreement’, yet no mention of Article 7, the binding ‘objectives’ provision, was made. 94 The same decision is reflected in numerous other cases. 95 The most explicit use of the preamble by the Global North to advance financial gain occurred in EU-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs where the preamble, in addition to Articles 9, 62 and 70, was relied upon to determine the ‘object and purpose of the TRIPS Agreement’. 96 The Panel noted that the object and purpose ‘includes the provision of adequate standards and principles concerning the availability, scope, use and enforcement of trade-related intellectual property rights.’ 97 This preference given to the preamble, while simultaneously excluding consideration of Article 7, demonstrates that the preamble is presently used as a means to protect private rights to IP and exclude references to the position of the Global South, of which Article 7 solely refers to. As a result, the problem this presents for achieving balance in terms of human rights rests not in the absence of reference to human rights in the preamble, but rather in the references to ‘private rights’ and therefore the disproportionate prioritization of commercialization. 98
For this reason, in order to ensure private interests are not protected at the exclusion of all others, it is necessary for the preamble to include references to human rights and to the corresponding responsibilities of rights holders. For example, in paragraph one of the preamble, the words ‘for the benefit of all humankind’ should be inserted after the phrase ‘effective and adequate protection of intellectual property rights’. 99 Accordingly, reference to ‘private rights’ in paragraph four of the preamble should also be replaced with ‘human rights’. These proposed changes to the text of the TRIPS Agreement preamble are minor but, if agreed on, could demonstrate a philosophical shift in the balance in the TRIPS Agreement away from purely protecting IP rights through exclusion and towards ensuring that global benefits through technology and innovation can be achieved where necessary.
Article 7 was originally derived from the proposals submitted by 12 Global South countries with a focus to advancing their technological and economic development. 100 The provision outlines the objectives of the TRIPS Agreement. 101 It reads:
the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. 102
Article 7 has been an important provision in the development of IP rights around the world. In particular, its wording has been replicated in RTAs, including most recently in the RCEP. 103 It is considered to be the article that supports the balance in favour of the users of IP; however, as mentioned earlier, this balance has not been realized. 104 Although Article 7 should be used as a tool for the interpretation and application of the TRIPS Agreement, 105 it has often been overlooked in favour of the commercial interests prioritized in the preamble.
Circumvention of Article 7 by the DSB has contributed to the underrepresentation of human rights in the TRIPS Agreement. In United States-Section 211 Omnibus Appropriations Act of 1998, the essential elements of Article 7 were reduced to read ‘a form of the good faith principle’. 106 Furthermore, of the 34 disputes between Global North countries before the DSB, all were reluctant to rely on Article 7 for fear of disadvantaging their own commercial interests in future disputes. 107 Therefore, Article 7 has been an ineffective provision, which is problematic given its original purpose to promote Global South perspectives.
In 2011, Kur submitted proposed amended text which aimed to further encompass the objectives of Article 7 by referencing a range of policy goals. 108 However, we propose to build on these suggestions to ensure the ambiguity is removed, allowing countries the ability to support outcomes where human rights are prioritized. 109 For this reason, we propose that Article 7 be further amended to align with contemporary instrumentalism by specifically incorporating references to human rights. First, Article 7 should remove reference to ‘technological knowledge’ to broaden its scope and include the following sub-sections to prioritize human rights:
Article 8 is entitled ‘principles’ and is comprised two general provisions separated out across two sub-sections. The first is the public interest principle, and the second aims at preventing abuse of IP rules:
Like the other principles and objectives provisions of the TRIPS Agreement, the elements of Article 8, particularly the ‘public interest’ principle, were proposed by Global South countries to preserve a level of legislative flexibility in the enactment and implementation of the TRIPS Agreement. 111
However, the requirement in sub-section two that such measures be ‘consistent with the provisions’ of the TRIPS Agreement, also referred to as the ‘TRIPS Consistency Limitation’, significantly diminishes the freedom afforded to Global South perspectives and ultimately limits the responsibilities of IP rights holders. In the case of European Communities-protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuff and Canada-Patent Protection of Pharmaceutical Products, 112 the Panel was of the view that there are no measures inconsistent with the public policy principles by virtue of the fact that the balance of public policy with other provisions of the TRIPS Agreement is already achieved under Article 8. Therefore, the favoured protection-based approach was again apparent when the Panel determined that public policy issues could only be those not regulated by the TRIPS Agreement. 113 While more flexible approaches to Article 8 have been observed, this wider scope is only in respect of public health, which is only one human rights issue that technology transfer is likely to impact. 114 Again, the limited scope of Article 8 is inconsistent and problematic for the necessary convergence of human rights with IP rules under the instrumentalist theory. Even though certain public interest principles may be inconsistent with specific provisions of the TRIPS Agreement, without further consideration of the alleged inconsistency against the TRIPS Agreement as a whole, including the preamble, objectives and principles provisions, the protection of private interests will always supersede the promotion of human dignity.
In order to genuinely promote human rights, the TRIPS consistency limitations in Article 8 should be removed to allow for wider interpretation. One way to do this would be to amend Article 8 to read:
While we have been critical of the TRIPS Agreement, the amendment provides some optimism in the sense that it demonstrates pathways forward to achieving reform without substantial amendments. However, for these reforms to be meaningful, they would have to support more flexibility in domestic frameworks in terms of implementing TRIPS Agreement obligations. This is not necessarily to suggest that IP rights should be watered down in all instances; indeed, there are many studies that show strong IP rights support the dissemination of knowledge. 115 However, there needs to be flexibility in the structure of IP regimes to ensure that human rights are not adversely impacted. Furthermore, as the Special Rapporteur suggests, ‘[w]here patent rights and human rights are in conflict, human rights must prevail’. 116 For this reason, amendments to the TRIPS Agreement to support human rights and encourage property rights holders to realize their accompanying responsibilities is critical, particularly for vulnerable and under-resourced Global South countries. The proposed changes to the preamble and principles and objectives provisions can support a more balanced TRIPS Agreement as these provisions are intrinsic to its interpretation and operation and may support more balanced dispute resolutions and actions by Member States.
This paper has demonstrated that emerging theories of IP protection promotes human rights alongside protection of property rights. However, as noted earlier, the TRIPS Agreement does not provide this balance needed to protect human rights and ultimately address global challenges, particularly problematic for the Global South. Currently, the TRIPS Agreement focuses disproportionately on economic and commercial outcomes. This is based entirely on the property rights theory of IP. Not only does this overlook the rights of all persons impacted by technology but it also ignores the responsibilities that should accompany IP rights. Although we recognize the importance of the rights of the IP inventor or author, it is essential to pause and think about what needs to be achieved by IP rights. Research and invention is only the first step needed to improve outcomes for communities. Failure to recognize this is a barrier to realizing the REBSPA, particularly with respect to vulnerable populations in the Global South.
Our conclusion earlier has led to our conceptualization of textual amendments to the TRIPS Agreement to align its operation with the instrumentalist approach. These proposals for reform are only a first step in ensuring that the human impacts are considered. Indeed, technology and new knowledge can encompass a responsibility when there is potential for benefits to extend to all peoples. In this respect, global health, both human and environmental, must be prioritized by international agreements, such as those at the centre of the multilateral trading regime. Without doing so, the world will remain focused on the objectives of the few to the detriment of all.
Liu Yinliang, ‘An American intangible empire of intellectual property rights and its dilemmas’ (2014) 2 Peking University Law Journal 227 at 240–2.
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Jerome H Reichman, ‘Securing compliance with the TRIPS agreement after US v. India’ (1998) 1 Journal of International Economic Law 585 at 585.
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) arts 7 and 66.2 (TRIPS Agreement).
See eg Suerie Moon ‘Meaningful Technology Transfer to the LDCs: A Proposal for Monitoring Mechanism for TRIPS Article 66.2’ (ICTSD Programme on Innovation, Technology and Intellectual Property, policy brief no 9, April 2011) 6. Available at https://www.files.ethz.ch/isn/138434/technology-transfer-to-the-ldcs.pdf (accessed 22 January 2023); International Council on Human Rights Policy ‘Beyond Technology Transfer: Protecting Human Rights in a Climate-Constrained World’ in Joshua D Sarnoff (ed) Research Handbook on Intellectual Property and Climate Change (Edward Elgar Northhampton 2016) 126 at 136; Monirul Azam, ‘Are the UNFCCC Paris agreement and the TRIPS agreement facilitating access to and transfer of climate technologies for the LDCs?’ (2021) 18 Manchester Journal of International Economic Law 327 at 330. Available at https://heinonline.org/HOL/P?h=hein.journals/mjiel18&i=349 (accessed 1 April 2023).
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Yinliang (n 1) 240.
Gregory Shaffer, ‘Trade law in a data-driven economy: the need for modesty and resilience’ (2021) 20 World Trade Review 259 at 266.
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Kanning (n 11) 15.
Peter Drahos A Philosophy of Intellectual Property (ANU e Text Acton Australia 2016) 201.
See eg Lisa P Ramsey, ‘Intellectual property rights in advertising’ (2005) 12 Michigan Telecommunications and Technology Law Review 189 at 190; Jessica Silbey, ‘The mythical beginnings of intellectual property’ (2007) 15 George Mason Law Review 319 at 319. Available at https://heinonline.org/HOL/P?h=hein.journals/gmlr15&i=329 (accessed 4 January 2023).
Carlos M Correa and Abdulqawi A Yusuf Intellectual Property and International Trade: The TRIPS Agreement (3rd edn Wolters Kluwer, Alphen aan den Rijn Zuid-Holland Netherlands 2016) 468; Lior Zemer The Idea of Authorship in Copyright (Ashgate Farnham United Kingdom 2007) 12.
Carla Hesse, ‘The rise of intellectual property, 700 B.C.-A.D. 2000: an idea in the balance’ (2002) 131 Daedalus 26 at 43.
Neil Wilkof, ‘Theories of intellectual property: is it worth the effort?’ (2014) 9 Journal of Intellectual Property Law & Practice 257.
An Economic Review of the Patent System: The Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, S Res 236, 85th Congress (1958) 79.