From an international law and policy standpoint and with the end of goal of counterbalancing the current international IP system that inordinately favors the rights of IP holders and IP-exporter states at the expense of the rights of the public and IP-importing states to use and gain access to these intellectual creations for their economic, cultural and social development, categorizing IP as a human right is very useful because it reframes the IP controversies within the framework of international human rights law – like the access to medicines issue and the Doha Declaration. It is believed that an inter-regime shift to an international human rights law forum will give developing countries, international NGOs and civil society organizations a more hospitable venue for pushing for changes in the IIPS that have become too burdensome and inequitable for economically less-developed states.

The placing of IP within the international human rights discourse subsumes IP in its entirety. A human rights perspective to IP cross-cuts across different layers of IP issues – thus, it involves both IP as a general subject matter and also its various aspects such as its purpose, its economic, social and cultural effects and how it is implemented or interpreted.

In general, it is the states themselves who are obliged to ensure that IP standards are consistent international human rights law. This is nothing new for states since more often than not how they comply with their international obligations are founded on and are subject to more than just one international legal regime. With regard to the appropriate governing institutional body or agency in a mixed IP-human rights regime, at first glance, the issue seems to be a major stumbling block. However, this should be considered more of an operational concern rather than a fundamental issue since this can be addressed through proper coordination and cooperation between and among the potential actors involved. For example, the WTO and WIPO are able to cooperate and coordinate their actions with respect to different aspects of IP and global trade.

As mentioned by Chapman, “All human rights are universal, indivisible and interdependent and interrelated.” Thus, the human rights concerning intellectual creations are neither second-tier or subordinate to other human rights. This is reasonable given than human rights inhere in persons and do not require external rules and policies for their creation or continued existence. The human right of an author has the same level of importance as the human right of the public to access such creations. And the only way to promote the first is to also promote the second – these two rights are inseparable and the development of one depends on corollary growth of the other.

The minimum core obligations proposed by Chapman are important principles or guidelines that states should adhere to and uphold in order to make the international IP regime more fair, just and equitable. I agree with Chapman that IP rights regimes should: have an explicit human rights and ethical orientation; take into account a country’s development requirements; encourage cultural participation; and promote scientific program and broad access to its benefits. The international IP regime will only be relevant and useful to all states (the majority of whom are developing or less developed countries) if the regime is reasonable, fair and just, if it is built on cooperative action, if it is sensitive to the needs of less develop countries, and if it is not used as a means to interfere with the policies of other states.

Viewing IP from a human rights perspective means that the relevant international human rights principles, rules and norms must be read into international IP law. In this manner, states and international bodies must bear in mind their obligations under international human rights law before or when they: enter into new treaties that affect IP standards or expand the subject matter that is coverage by IP; interpret or implement international IP rules; or seek to bring another state into a dispute settlement process before the WTO involving IP.

The national IP law in the Philippines contains a statement of principles about IP rights and how IP bears a social function. I assume that such a “public good” principle is also contained in national IP laws of other states. Since this idea of the “social function” of IP is not expressly stated in the TRIPS Agreement (although it may be argued that it is implied written into the TRIPS Agreement), introducing a human rights perspective into the international IP regime reframes controversial IP issues and reminds states that the “general welfare” of all states, especially developing countries (and the public), has to be considered and protected. In this way, human rights principles will be read into IP laws. This is good for both the IIPS and the international human rights law system because it properly contextualizes the former and expands the application and extent of the latter. There is really nothing worrisome about this melding of international regimes and systems since the growing complexity of transactions and relationships between and among states has and will naturally create overlaps, intersections, mergers and dovetailing of issue areas among these various international legal regimes. In a globalized, postmodern world, there will always be a multiplicity of perspectives to any issue or phenomena. An IP issue is at the same time a trade issue, as it is also a human rights issue, which is also an economic issue (and so on and so forth).

It is imperative that the TRIPS should have “human rights” language in its text – like a declaration of principles and policies that affirm the importance of public access and participation in IP. Engrafting principles from international human rights into the TRIPS Agreement will make the latter more balanced and equitable than how it is currently drafted. Actually, this is what should have been done during the negotiation of the TRIPS had the process not been improperly co-opted by private transnational companies and by developed countries to serve their own interests.

The author is a postgraduate law student at the University of Edinburgh. This post was originally written for a class in International Intellectual Property Law.