Edited by Willem Grosheide
Chapter 4: Patents and human rights: where is the paradox?
Rochelle Cooper Dreyfuss* There is an emerging trend, particularly in international and European circles, to bemoan what is termed the human rights paradox in intellectual property. Thus, it is claimed that intellectual property rights are grounded in fundamental concepts of human dignity and just deserts, in a commitment to accord to creators the benefits of their intellectual efforts. At the same time, however, it is recognized that intellectual property rights protect information, a nonrivalrous good. The paradox is said to arise when one human right is pitted against another, when intellectual property rights are used to restrict access to information that could – at no real cost to the developer – be deployed in ways that satisfy fundamental human needs.1 In a sense, it is not difficult to understand why this concern has emerged. At the international level, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social, and Cultural * Pauline Newman Professor of Law and Director of the Engelberg Center on Innovation Law and Policy. This chapter was prepared as a paper for a conference on ‘The Human Rights Paradox in Intellectual Property Law’ organized by the Centre for Intellectual Property Law (CIER), Molengraaff Institute for Private Law, at Utrecht University. I am grateful to Willem Grosheide and the other Conference organizers and to the Conference participants, who convinced me there was a problem here worth thinking about. I am especially indebted to Geertrui Van Overwalle, who was assigned the task of arguing the contrary view on...
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