Teaching and research in IPR: Need for a human right approach
Paper presented at the 2015 CLEA Conference in Glasgow
Lisa P. Lukose
Guru Gobind Singh Indraprastha University
Intellectual property right (IPR) is a subject of multidisciplinary perspective. So does the subject human right (HR). There exist basic relationship, interface and overriding questions between IPR and human right. Article 27 of UDHR, 1948 and International Covenant on Economic, Social and Cultural Rights, 1966 proclaim the human right to the protection of the moral and material interests resulting from any scientific, literary or artistic production on the one hand, and the human right to enjoy the benefits of scientific progress and its applications on the other. The justification for IPR includes stimulation for creativity, diffusion of knowledge, disclosure of knowhow for the benefit of the public and economic development. There is also an argument that IP rights can themselves be human right, to the extent they protect and reward innovators and creators. Both IPR and human right are inter alia concerned with information, knowledge, education, science, development, life, health, property, free expression etc. However, in the contemporary curriculum, the teaching and research in intellectual property rights are dominated by pure legal analysis. This is obviously a narrow approach, not satisfactory on its own making the study of IPR inadequate and insufficient.
The conflict between IPR and human right is supported by the fact that the implementation of TRIPS in many countries is inconsistent with international human right obligations. The conflict between IPR and human right is further evidenced in the discussions on right to health, right to have access to health, protection of Traditional Knowledge and indigenous peoples’ right, restrictions on access to/use of copyrighted material and control of software and so on. Deprivation of life, health and information are being treated as immoral, unethical and against the very spirit of human right notion.
Hence, there need to have primacy of human right obligations over economic policies and IPR must be understood in a way which protects the social functions. The explicit and systematic integration of IPR and human right principles can advance students’ understanding and practice of law with a human right approach. On this backdrop, this paper tries to analyse (i) the relationship and conflict between IPR and human right, (ii) the need and the ways to bring a balance between these conflicting disciplines to ensure effective access to justice and (iii) how teaching and research in IPR to be carried out with a human right approach.