Peter K. Yu (Texas A&M University School of Law) has posted The Anatomy of the Human Rights Framework for Intellectual Property (SMU Law Review, Vol. 69, 2016) on SSRN. Here is the abstract:
Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on "intellectual property and human rights" and "intellectual property as human rights." Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has been devoted to the interplay of patent rights and human rights in the area of scientific productions.
Aiming to fill the lacuna, this Article focuses on the complex interactions among scientific productions, patent rights, and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores where patent rights fit within the human rights framework for intellectual property. To facilitate a systematic and holistic study of this framework, this Article introduces a layered approach to intellectual property and human rights and identifies the framework's organizing principles and structural layers.
This Article further illustrates the proposed approach with examples involving different types of scientific productions: (1) scientific publications; (2) scientific innovations (including inventions); (3) scientific knowledge; and (4) indigenous knowledge, innovations, and practices. The Article concludes by exploring whether an alternative human rights basis can be found in the right to own private property — a recurring debate that has been advanced by policymakers, commentators, and intellectual property industries as well as one that has found support in recent human rights developments in Europe.