Edited by Christophe Geiger
Chapter 35: Implementing intellectual property provisions in human rights instruments: Towards a new social contract for the protection of intangibles
The growing interest in the intersection of intellectual property (IP) and human rights is certainly not accidental. IP protection has developed in such a manner that core ethical questions are increasingly involved when designing its contours, thus requiring very fundamental societal choices by policy makers. At the same time, exclusive rights are sometimes perceived by the general public as potentially impacting the free enjoyment of human rights and fundamental freedoms. As a result, the IP system is currently facing difficult times: being confronted with what has often been described as a serious crisis of legitimacy, it is regarded by many as incapable of guaranteeing an equitable balance of the interests involved. This chapter will analyse some possible roots of this crisis. In particular, it will examine to which extent the ‘balance of interests’ considerations behind IP protection have found (or not) their way into constitutions or similar legal instruments worldwide. It will argue that an equitable constitutional formula might remedy the expansive tendencies of IP and help recover its legitimacy through a reorganisation of the legal framework. Against this background, this chapter starts by outlining several reasons that made it necessary to reflect upon an adequate fundamental-law guaranty for IP protection (1). Building upon the results of an empirical study of about 200 national constitutions and several leading international human rights instruments, it then examines how such protection is currently framed in constitutions around the globe (2).
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