Reductionist Intellectual Property Protection and Expansionist (and “Prodevelopment”) Competition Rules as a Human Rights Imperative? Enhancing Technology Transfer to the Global South

2021 ◽  
Vol 14 (1) ◽  
pp. 215-272
Author(s):  
Klaus D. Beiter
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Public Interest ◽  
Competition Law ◽  
Global South ◽  
Cultural Rights ◽  
Right To Development ◽  
Competition Rules ◽  
The Right ◽  
Dissemination Of Technology

Abstract Increasingly, the economy of industrialised countries moves away from being based on a multiplicity of independent innovators to one characterised by cross-licensing and the pooling of intellectual property (IP) rights. Competition law is accorded a more limited role. Refusals to license or restrictive licence terms are tolerated. This paradigm emphasises the innovation at the expense of the dissemination rationale of IP and competition law. The pressure on developing countries is to follow suit. However, this approach jeopardises overcoming the technology dependence of these states. Yet, the political consensus underlying the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was that, in exchange for IP rights protection, a transfer and dissemination of technology benefiting the global South would occur. This has not taken place so far. Taking this promise seriously requires according an enhanced, more social role to competition law. Articles 8(2), 31 and 40 of TRIPS – the TRIPS competition rules – could be interpreted in a way to accomplish this. This article argues in favour of a “prodevelopment” approach to IP-related competition law. This could be viewed as a demand of the rule of law at the international level. On the one hand, treaties such as TRIPS are to be interpreted in good faith. On the other, public interest and human rights considerations justify, as it were, require, such an approach. Articles 7 and 8 of TRIPS can play a crucial role in this regard. They reflect such public interest considerations as “object and purpose” of TRIPS. They also provide a link to international human rights law (IHRL). IHRL protects a (group) right to development, confirming “policy space” for World Trade Organization (WTO) members and the freedom to opt for a competition law model that facilitates dissemination. The International Covenant on Economic, Social and Cultural Rights (ICESCR) further protects various economic, social and cultural rights, including the right to enjoy the benefits of scientific progress and its applications (REBSPA). These rights may be said to give rise to “transfer and dissemination of technology” as a human right. Duties under the right to development and “territorial” and “extraterritorial” human rights obligations (ETOs) under the ICESCR support an understanding of competition law which is pro development, which takes account of local access and welfare needs. The article concludes with a set of 10 consolidated considerations for a “prodevelopment” IP-related competition law.

The African Commission on Human and Peoples' Rights and the Demystification of Second and Third Generation Rights under the African Charter: Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria

2005 ◽  
Vol 1 (2) ◽  
pp. 129-146 ◽  
Author(s):  
Justice C. Nwobike
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Economic Rights ◽  
Oil Companies ◽  
Cultural Rights ◽  
Right To Development ◽  
Failure To Protect ◽  
Action Center ◽  
The Right ◽  
African Commission

AbstractThis article argues that the decision of the African Commission on Human and Peoples' Rights in the Ogoni case represents a giant stride towards the protection and promotion of economic, social and cultural rights of Africans. This is predicated on the African Commission's finding that the Nigerian Government's failure to protect the Ogoni people from the activities of oil companies operating in the Niger Delta is contrary to international human rights law and is in fact a step backwards since Nigeria had earlier adopted legislation to fulfill its obligation towards the progressive realization of these rights. The findings of the African Commission demonstrate that economic, social and cultural rights are not vague or incapable of judicial enforcement. They also illustrate how the Charter can be interpreted generously to ensure the effective enjoyment of rights. Novel and commendable as the decision is, it is not without its shortcomings. These shortcomings lie in the failure of the Commission to pronounce on the right to development, its silence on the desirability of holding transnational corporations accountable for human rights violations, and the institutional weakness of the Commission in enforcing its decisions.

9 The Great Enterprise Today (2006)

2020 ◽  
Author(s):  
Pace John P
Keyword(s):  
Human Rights ◽  
Working Group ◽  
International Convention ◽  
Cultural Rights ◽  
Optional Protocol ◽  
Human Rights Council ◽  
Right To Development ◽  
United Nations Declaration ◽  
The Right ◽  
New Phase

This chapter studies the arrival of the Human Rights Council. The idea of a Human Rights Council was raised in 1976, as the Great Enterprise entered a new phase. The documentation in 1976 on this issue is comprehensive, consisting of no less than five informative reports. In addition, the Commission on Human Rights had before it the analysis of the observations received from some Member States. They included an analysis of the deliberations at the Assembly that had taken place in November of 1975, which covered a range of topics, including ‘the possibility of transforming the Trusteeship Council into a Human Rights Council’. In 2005, the Secretary-General announced his plans to propose the establishment of a Human Rights Council to the Commission. A few months later, the World Summit decided on the establishment of a Human Rights Council. The Human Rights Council inaugurated its work with the adoption of two international human rights instruments, which had reached completion in the Commission on Human Rights: the International Convention for the Protection of All Persons from Enforced Disappearance and the United Nations Declaration on the Rights of Indigenous Peoples. It also extended the mandate of the Working Group formed under the Commission to elaborate an optional protocol to the International Covenant on Economic, Social and Cultural Rights and of the Commission’s Working Group on the Right to Development.

scholarly journals Linkage between Right to Development and Rights-based Approach: An Overview

2014 ◽  
Vol 1 ◽  
pp. 96-111 ◽  
Author(s):  
Khandaker Farzana Rahman
Keyword(s):  
Human Rights ◽  
Poor People ◽  
Cultural Rights ◽  
Progressive Development ◽  
Global Partnership ◽  
Right To Development ◽  
New Concepts ◽  
Rights Discourse ◽  
Policies And Programs ◽  
The Right

The concept of right to development has been inserted into the rights discourse quite recently, though it was known earlier that theg proper implementations of human rights tend to secure the life standard and progressive development of the community. New concepts of development expressed its concern for the overall betterment of human being.1 Right to Development (RTD) is being recognized as a collective right in the human rights arena. On the other hand, Rights Based Approach (RBA) has an inseparable link with right to development which seeks for the identification of issues to make a need based assessment. In brief, a human-rights approach translates poor people’s needs into rights, and recognizes individuals as active subjects and stakeholders. It further identifies the obligations of states that are required to take steps – for example through legislation, policies and programs with a view to respect, promote and fulfill the human rights of all people within their jurisdiction.2 RBA addresses rights based issue to achieve goals adopted by MDG, like alleviating poverty, promoting education, ensuring gender equality and empowerment of the women, developing a global partnership for development etc. In this article, the right to development is being tried to accurately affiliate with the framework known as Rights Based Model with a view to characterizing a successful coordination between the two. Thus if the states intend to adjust their methods of functioning and fulfill their obligations to the beneficiaries according to the rights based model, the recognized human rights such as economic, social, cultural rights involved in human development would be enjoyed and respected by an individual irrespective of his class, group, origin and any other attributes. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18528 Northern University Journal of Law Vol.1 2010: 96-111

scholarly journals Harnessing Intellectual Property for Development: Some Thoughts on an Appropriate Theoretical Framework

2017 ◽  
Vol 16 (4) ◽  
pp. 368
Author(s):  
Caroline Bongiwe Ncube
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Intellectual Property ◽  
Public Interest ◽  
Creative Process ◽  
Theoretical Framework ◽  
Stakeholder Interests ◽  
Right To Work ◽  
Access To Knowledge ◽  
The Right

 This paper considers how an appropriate theoretical framework for Intellectual Property may be constructed. Such a framework would be the lens through which contested IP issues may be resolved and upon which national IP policy and legislation might be based. The paper begins by highlighting the inherent tensions in IP, which are caused by the various stakeholder interests that this body of law seeks to balance, and by the cross-cutting nature of IP. It contends that in order to more equitably balance the contesting rights of the creators and users, IP rights should be formulated and enforced so as to meet societal goals or serve public interest, be responsive to the economic environment, and take cognisance of the human rights claims of both creators and users. National socio-economic goals should inform such a framework in a way that ensures that IP is used as a means to achieve these goals and is not perceived as an end. This will require nuances in policy and legislation that meet the country's needs. In particular, as a developing country South Africa would do well to exploit available flexibilities in the various international IP agreements by which it is bound. Due regard also ought to be had to the users' need for affordable access to IP-protected goods in order that they may exercise the right to work and access to knowledge, as provided for by ss 22 and 16 of the Constitution respectively. Similarly, creators ought to be given due recognition, together with reasonable reward and remuneration for their efforts. This will be achieved through the creation of an IP system that provides protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. Such protection should rely on registration systems are efficient, simplified and affordable. The accompanying enforcement system should be equally accessible, although the costs of enforcement would depend on the forum used to secure redress. Finally, the resulting IP regulatory framework should be both certain and clear.

scholarly journals Decolonising human rights: how intellectual property laws result in unequal access to the COVID-19 vaccine

2021 ◽  
Vol 6 (7) ◽  
pp. e006169
Author(s):  
Sharifah Sekalala ◽  
Lisa Forman ◽  
Timothy Hodgson ◽  
Moses Mulumba ◽  
Hadijah Namyalo-Ganafa ◽  
...  
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Rapid Development ◽  
Access To Medicines ◽  
Global South ◽  
Essential Medicines ◽  
Property Law ◽  
Intellectual Property Law ◽  
Marginalised Groups ◽  
The Right

The recent rapid development of COVID-19 vaccines offers hope in addressing the worst pandemic in a hundred years. However, many countries in the Global South face great difficulties in accessing vaccines, partly because of restrictive intellectual property law. These laws exacerbate both global and domestic inequalities and prevent countries from fully realising the right to health for all their people. Commodification of essential medicines, such as vaccines, pushes poorer countries into extreme debt and reproduces national inequalities that discriminate against marginalised groups. This article explains how a decolonial framing of human rights and public health could contribute to addressing this systemic injustice. We envisage a human rights and global health law framework based on solidarity and international cooperation that focuses funding on long-term goals and frees access to medicines from the restrictions of intellectual property law. This would increase domestic vaccine production, acquisition and distribution capabilities in the Global South.

Interrelation of the realization of the right to participate in the cultural life of society with other rights

2021 ◽  
Vol 15 (3) ◽  
pp. 91-93
Author(s):  
Şəhriyar Rəhman oğlu Cəfərzadə ◽  
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Cultural Rights ◽  
Cultural Life ◽  
Community Information ◽  
The Republic ◽  
The Right

As one of the basic human rights, the right to participate in the cultural life of community is intertwined with the number of human rights. When we analyze both the norms of international law and domestic norms, we see this feature of the law. Thus, in the norms of international law, creative freedom and intellectual property rights are considered together with the right to participate in cultural life. Although the Constitution of the Republic of Azerbaijan specifies the rights mentioned separately, the content of these norms connects these rights. Thus, both literary and artistic, as well as scientific and technical activities, which are part of creative freedom, are considered participation in cultural life. The implementation of these two activities creates intellectual property rights. Key words: human rights, intellectual property rights, cultural rights, right to participate in cultural life of community, information right, cultural right

scholarly journals The Right to Take Part in Cultural Life: On Copyright and Human Rights

2017 ◽  
Author(s):  
Lea Shaver
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Digital Culture ◽  
Property Law ◽  
Cultural Inheritance ◽  
Intellectual Property Law ◽  
Cultural Rights ◽  
Cultural Life ◽  
The Right

Article 15(1)(a) of the International Covenant on Economic Social and Cultural Rights -- a source of binding law in 160 countries -- recognizes “the right of everyone to take part in cultural life.” This article suggests how lawmakers and jurists might give meaning to this provision, with particular attention to issues arising in an age of digital culture. The authors conclude that the right to take part in cultural life should be understood in terms of the ability to access, enjoy, engage, and extend upon a common cultural inheritance and that realizing this right will require significant reforms in international intellectual property law.

The Protection of Intellectual Property in International Human Rights Law

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Fundamental Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Cultural Rights ◽  
Core Subject ◽  
Charter Of Fundamental Rights ◽  
The Eu

This chapter examines the human rights system and the way it deals with human creations and innovations that are the traditional core subject matter of intellectual property (IP) rights. It begins by reviewing the scope for protection under Article 27 (2) Universal Declaration of Human Rights (UDHR) and Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The chapter moves on to the protection of property in human rights law, especially on the regional, European level. It examines how IP can be protected as property under the European Convention of Human Rights (ECHR) and under the EU Charter of Fundamental Rights (EU Charter). Finally, the chapter looks at some of the overlaps with international IP rules and the conflict norms in the human rights system to address such overlaps.

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