Chapter 3: The human rights paradox: intellectual property rights and rights of access to science
The right of everyone to share in the benefits of science has been enshrined in human rights instruments since the last century, originally in Article 27 of the Universal Declaration of Human Rights (UDHR) (‘Article 27’) and subsequently in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (‘Article 15’). The right was generally perceived as ‘obscure’ and its interpretation widely neglected until the expansion of the international intellectual property (IP) regime under the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) prompted an upsurge of legal scholarship and reports from international organizations (IOs) seeking to address the ‘human rights paradox.’ The paradox is claimed to arise from the juxtaposition in human rights instruments of individual rights over intellectual creations against the rights of everyone to ‘share in scientific advancement and its benefits.’ This chapter draws on archived documentation to show that the paradox rests on a conceptual obfuscation of human rights and IP rights and is at odds both with the historical record on the aims of the drafters of the UDHR and the philosophical and legal foundations of human rights and IP law. The right of everyone to share in the benefits of science has been enshrined in human rights instruments since the last century, originally in Article 27 and subsequently in Article 15.
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