Chapter 4: The dimension of design: National systems
The language of ‘balance’ is often employed in discourse regarding IPRs: balance between private right and public interest, between incentivizing artistic and technological innovation and the public domain. This is captured in the UDHR reference to rights in intellectual property, Article 27, in its juxtaposition of a participatory right (in paragraph 1) with the proprietary right (paragraph 2) protecting the moral and material interests of creators: Article 271. Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement and its benefits. Everyone has the right to protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author. Examples of this idea in IP legal instruments include: the provision of the TRIPS Agreement on objectives (Article 7) referring to ‘a balance of rights and obligations’; and the preamble of the WIPO Copyright Treaty 1996 (‘WCT’) which recites, ‘Recognising the need to maintain a balance between the rights of authors and the large public interest, particularly education, research and access to information, as reflected in the Berne Convention’. Part of its attractiveness must lie in the image of the balancing scales of justice: a metaphor that suggests that in distributing rights and obligations, rewards and burdens, we are guided by criteria that are carefully calculable. It is not a suggestion that withstands examination well, for even a cursory scrutiny yields more disturbing questions than clarity.
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