Revisiting the Curriculum: what we can learn (and teach) from global developments in Intellectual Property Rules
Paper presented at the 2015 CLEA Conference in Glasgow
University of KwaZulu-Natal
The era of globalisation has opened the doors to legal practice across multiple jurisdictions. While lawyers are increasingly considering aligning their training and qualifications to enable them to practise in other, and across, jurisdictions, there are other effects of a globalised economy that impact on how we train prospective lawyers, and how we practise law.
One such is the advent of the new globalised system of intellectual property rights inaugurated by the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This treaty, and a host of subsequent trade agreements involving one of the economic powerhouses on the one hand, and groups of developing countries, on the other have tended to strengthen, lengthen, and extend protection to rights holders. What is often not dealt with in the law school and in the profession is the adverse effects of such strong rights on the public interest – the right of the public to access affordable public goods like medicines, books and other commodities. Increasingly, the intellectual property rights chapters of trade agreements, at the behest of powerful multinational corporations, are designed to shore up maximum protection for rights holders, often sacrificing the human rights of citizens in low- and middle-income countries. Sadly, there just seems to be insufficient bandwidth for foregrounding the concerns of poorer people in law school curricula, especially when it comes to intellectual property rights. The only intellectual property law our students are exposed to is that of the corporate sector.
At the University of Kwazulu-Natal, we have made concerted attempts to reverse this trend. Hot on the heels of five successful years of offering an intensive short course on IP and access to medicines to lawyers, health workers and activists, the School of Law has launched a new postgraduate module on Human Rights, Intellectual Property and Access to Medicines. This is a rights-based offering seeking to place human rights and social justice at the centre of the IP debate. It draws on local and international scholarship and advocacy efforts in order to provide a counter-narrative to the existing paradigm of IP hegemony.
The advancement of this alternative paradigm necessitates making promotion of human rights central to the legal discourse, and eschews the traditional distinctions between private and public law. When the exercise of private rights impact adversely on the interests of the broader public, holders of such rights cannot claim immunity from public scrutiny. This is nowhere more evident than in the manner in which holders of pharmaceutical patents have created monopolies on their medicines, pricing them out of the reach of the majority of people needing them. The UKZN course seeks to interrogate and re-define the interplay of rights and obligations in this sphere. The paper argues that such an interrogation and re-definition is not only possible, but also desirable and essential. Lawyers are not mere technocrats implementing rules cast in stone, but active agents engaging with and, where necessary, attempting to transform the law.