Human Rights Limitations In Patent Law
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Human Rights Limitations In Patent Law
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Author : Geertrui Van Overwalle
language : en
Publisher:
Release Date : 2015
Human Rights Limitations In Patent Law written by Geertrui Van Overwalle and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2015 with categories.
The relationship between human rights and intellectual property (IP) rights has been under-theorized for a long period. IP rights have remained a “normative backwater” in the burgeoning post-World War II human rights movement. Only over the last decade, human rights discourse has gained wider attention and commentators have started to explore the relationship between IP and human rights in more detail. Two major approaches can be witnessed. A first school of thought takes the view that human rights and IP are in fundamental conflict. Strong IP protection is undermining, and therefore incompatible with, a broad spectrum of human rights obligations, especially in the area of economic, social and cultural rights. This approach can be witnessed in Resolution 2000/7, which stipulates that “Actual or potential conflicts exist between the implementation of the TRIPs Agreement and the realisation of economic, social and cultural rights.” Resolving this conflict lies in the recognition of the primacy of human rights law over IP law and in viewing IP as instruments designed to fulfill human rights objectives. A second way of thinking claims that human rights and IP are essentially compatible and can coexist. Indeed, human rights and IP focus on the same fundamental question and share the same goal. Both human rights and IP rights aim at enhancing welfare and the benefit for society. Both legal regimes equally try to define appropriate scope of private rights, while safeguarding public interest. A clear exponent of this attitude is reflected in the International Covenant on Economic, Social and Cultural Rights (ICESCR). The present paper aims at exploring the delicate relationship between the human rights pantheon and the patent framework in more depth. The normative perspective underlying the present paper is that human rights can coexist with IP rights. Human rights are valuable and necessary complements of patent rights. Human rights serve as a counter balance of patent rights when centering too one-sidedly on trade, access to markets and economic calculus. For patent law to be widely accepted and generally recognized as a tool fostering both private and public interest, it is vital that current patent law regimes are inextricably linked with human rights discourse, and that human rights assist in defining the utter limits of patent rights. Patent law should be moulded as a human rights compliant legal framework to promote innovation. The normative claim put forward in the present paper is based on a reassessment of the notion of public interest in patent law and an analysis of human rights treaties. Human rights can be factored into patent law, through the gateway of public interest. A post-modern interpretation of public interest will prove to offer a more then skeletal basis for taking into account human rights into patent law, and to have prompted new human rights standards in the patent law system. The present paper focuses on human rights and human values, and draws attention to civil, political, economic, social as well as cultural rights. Human rights and values which are considered here as particularly relevant are human dignity, the right to food, the right to informed consent, the right to protection, the right of access to public health, the right to education and research, and the right of access to information. These human rights and values fulfil different functions in a patent law context. Some rights and values, such as human dignity and the right to food, act as a basis to limit the coming into existence of patent rights in certain fields. Other rights, such as the right to informed consent and the right of protection as translated in an origin requirement, act as a means to implement procedural guarantees in the patent application procedure. Yet other human rights, such as the right of access to public health and the right to education and research serve as limitations with regard to the exercise of patent rights. Although the right of access to information fits into this last category at first sight, it has a somewhat ambiguous position in the human rights and patent rights debate. Before embarking on a further analysis, some clarification regarding the concepts and terminology used is offered. The paper concludes that human rights and IP, two bodies of law that were once strangers, have now become increasingly intimate bedfellows. Human rights should feed into patent law in complementary manner. Patent law is an autonomous legal system of its own kind, with an intrinsic raison d'être. It is an instrument, a legal tool, aiming to serve both private and public objectives, both reward for innovation and societal well being through the production of new goods and services. Human rights are valuable and necessary complements of the patent system. They feed into the objective of public interest in patent law. They serve as a counter balance of patent rights centering too one-sidedly on trade, access to markets and economic calculus. For patent law to be widely accepted and generally recognized as a tool fostering both private and public interest, it is vital that current patent law regimes are inextricably linked with human rights discourse, and that human rights assist in defining the utter limits of patent rights. As has become clear from the exploration in the present paper, the respect for human dignity introduces certain limits on patentable subject matter in patent law, in order to safeguard the rights of human beings and human embryos. The right to food opens an avenue to impose restrictions in patent law in the interest of consumers. The right of informed consent invites patent law to be cautious in respect of the rights of donors of human biological material, testees and patients, and the rights of traditional knowledge holders. The human right to access to public health safeguards the rights of patients, by limiting the rights of patentees through the introduction of a compulsory license system, whereas the right to research is safeguarded for researchers entering well defined areas of exploration. Finally, the right of access provides adequate trajectories for innovators or users, to have efficient access to technological innovations and improvements through the disclosure requirement. When assessing patent law through the lens of human rights law, some issues remain unresolved. First, some unclarities as to concepts and scope live on. Second, the lack of enforceability of various human rights is problematic. Third, factoring human rights into patent law, might give rise to increasing legal uncertainty. Given the expanding nature of human rights and applying a universal and holistic approach of human rights in a patent law context might run counter to legal certainty. Legal certainty might require a more distinct approach, where a clear and limited catalogue of human rights, which have to be taken into account in a patent context, is provided. However, designing a closed list of human rights seems inadequate, as patent rights may be limited and restricted for a multitude of reasons (see article 4 IVESCR). Fourth, the relationship between human rights and human values remains unclear and controversial. This might also create problems of legal (un)certainty as well. Last but not least, it is not yet fully clear what the exact relationship is between the well know twin concept in patent law of ordre public & morality, and human rights. Notwithstanding some remaining unsettled issues, great effort should be put into taking full account of human rights considerations in patent law and into making a human rights approach in patent law even more explicit and exacting. For patent law to be widely accepted and generally recognized as a tool fostering both private and public interest, it is vital that current patent law regimes are inextricably linked with human rights discourse, and that human rights assist in defining the utter limits of patent rights.
Intellectual Property Law And Human Rights
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Author : Paul Torremans
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2020-06-08
Intellectual Property Law And Human Rights written by Paul Torremans and has been published by Kluwer Law International B.V. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020-06-08 with Law categories.
Intellectual Property Law and Human Rights Fourth Edition Edited by Paul L.C. Torremans Once regarded as a niche topic, the nexus of intellectual property and human rights now lies in the eye of the storm that is today’s global economy. In this expanded new edition of the pre-eminent work in this crucial area of legal theory and practice – with nine completely new chapters – well-known authorities in both intellectual property law and human rights law present an in-depth analysis and discussion of essential and emerging issues in the convergence of intellectual property law and human rights law. The fourth edition is fully updated to address current matters as diverse as artificial intelligence, climate change, and biotechnological materials, all centred on the relations between intellectual property and freedom of expression and the fundamental right to privacy in an intellectual property environment. The contributors address such topics as the following and more: the status of copyright as a fundamental right; fair use, transformative use, and the US First Amendment; intellectual property in the jurisprudence of the European Court of Human Rights; freedom to receive and impart information under the EU Charter of Fundamental Rights; how to mitigate the risks article 17 of Directive 2019/970 poses to freedom of expression; fair dealing defences; algorithmic copyright enforcement and free speech; developing a right to privacy for corporations; expanding the role of morality and public policy in European patent law; and ethical and religious concerns over patenting biotechnological inventions. As human rights issues continue to arise in an intellectual property context, practitioners, academics, and policymakers in both fields will continue to recognize and use this well-established cornerstone work in the debate as a springboard to the future development of the ever more prominent interface of intellectual property and human rights.
Intellectual Property And Human Rights
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Author : F. W. Grosheide
language : en
Publisher: Edward Elgar Publishing
Release Date : 2010-01-01
Intellectual Property And Human Rights written by F. W. Grosheide and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2010-01-01 with Political Science categories.
. . . very refreshing. . . a valuable contribution to the debate. European Intellectual Property Review The collection of articles makes a valuable contribution to current debates on these critically important issues by providing a range of views on the human rights implications of intellectual property law and policy. Madhu Sahni, Journal of Intellectual Property Rights Gathering together essays by leading commentators, Professor Willem Grosheide s timely book offers an excellent overview of the many significant questions of social and legal policy that emerge at interface between intellectual property and human rights. . . Providing a range of views on the human rights implications of intellectual property law and policy, this collection makes a valuable contribution to current debates on these critically important issues. Graeme Austin, University of Arizona, US In the modern era where the rise of the knowledge economy is accompanied, if not facilitated, by an ever-expanding use of intellectual property rights, this timely book provides a much needed explanation to the relationship between intellectual property law and human rights law. The contributors promote the view that this relationship should be central to the analysis of many of the profound problems that nation states and the international community encounter today, be they scientific, technological or cultural. The book is divided into sections covering the law and its trends, IP rights as human rights and human rights as restrictions to IP rights. This stimulating book will appeal to academics, postgraduate students, national and international public authorities and those involved with international organizations in the fields of intellectual property law and human rights law.
A Human Rights Framework For Intellectual Property Innovation And Access To Medicines
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Author : Joo-Young Lee
language : en
Publisher: Routledge
Release Date : 2016-03-09
A Human Rights Framework For Intellectual Property Innovation And Access To Medicines written by Joo-Young Lee and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-03-09 with Law categories.
This book examines the relationship between intellectual property in pharmaceuticals and access to medicines from a human rights perspective, with a view to contributing to the development of a human rights framework that can guide States in enacting and implementing intellectual property law and policy. The study primarily explores whether conflicts between patents and human rights in the context of access to medicines are inevitable, or whether patents can be made to serve human rights. What could be a normative framework that human rights might provide for patents and innovation? Joo-Young Lee argues that it is necessary to have a deepened understanding of each of the two sets of norms that govern this issue, that is, patent law and international human rights law. The chapters investigate the relevant dimensions of patent law, and analyse particular human rights bearing upon the issue of intellectual property and access to medicines. This study will be of great interest to academic specialists, practitioners or professionals in the fields of human rights, trade, and intellectual property, as well as policy makers, activists, and health professionals across the world working in intellectual property and human rights.
Human And Machine Rights
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Author : Leonardo Alonso Goikolea
language : en
Publisher: BoD – Books on Demand
Release Date : 2013
Human And Machine Rights written by Leonardo Alonso Goikolea and has been published by BoD – Books on Demand this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with Law categories.
Patent protection under the European Patent Convention (EPC) is not available for all issues. The intuitive colloquial meaning of the terms "invention" and "technical" often differs from the legal interpretation given in case-law decisions. Many of the current patent disputes among the players in the smartphone and portable-device market are based on issues relating to graphical user interfaces (GUIs), which allow the user to interact and interface with these devices. Furthermore, practitioners often have concerns regarding the filing of trivial patent applications in this and related computer-implemented fields. "Human and Machine Rights" seeks to place these issues in the light of the case law of the European Patent Office. Assisted by a Socratic dialogue between two forgotten computers, Master and Flip-flop, part I of "Human and Machine Rights" leads the reader through a systematised reading of EPO case law, looking for the conceptual framework underlying the boundaries of the exclusions from patentability for technicality reasons (in particular those relating to GUIs and gestural systems). The intention is to explicitly set out a praxis-oriented criterion, thus allowing practitioners to anticipate whether or not patent protection is available for a specific subject-matter, and to determine where the risks of trivial patent applications lie. Leaving behind the traditional classification of decisions according to the areas of activity relating to the respective inventions, "Human and Machine Rights" develops a new conceptual categorisation of the issues under discussion in the decisions, departing from the problems solved or the aims achieved by the inventions. A Human-Machine-Interface (HMI) model is used for this purpose. This categorisation automatically leads to a differentiation between the main trend of the decisions and the possible dissonant voices, thus contributing to increased harmonisation in the way inventions are dealt with. An annex presents
Human Rights And Intellectual Property
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Author : Laurence R. Helfer
language : en
Publisher: Cambridge University Press
Release Date : 2011-03-07
Human Rights And Intellectual Property written by Laurence R. Helfer and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011-03-07 with Law categories.
This book explores the interface between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, creators and owners of intellectual property are asserting a human rights justification for the expansion of legal protections. This book explores the legal, institutional, and political implications of these competing claims: by offering a framework for exploring the connections and divergences between these subjects; by identifying the pathways along which jurisprudence, policy, and political discourse are likely to evolve; and by serving as an educational resource for scholars, activists, and students.
The Oxford Handbook Of Intellectual Property Law
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Author : Rochelle Cooper Dreyfuss
language : en
Publisher: Oxford University Press
Release Date : 2018
The Oxford Handbook Of Intellectual Property Law written by Rochelle Cooper Dreyfuss and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018 with Law categories.
A comprehensive overview of intellectual property law, this handbook will be a vital read for all invested in the field of IP law. Topics include the foundations of IP law; its emergence and development in various jurisdictions; its rules and principles; and current issues arising from the existence and operation of IP law in a political economy.
Human Rights In A Technological Age
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Author : Rochelle Cooper Dreyfuss
language : en
Publisher:
Release Date : 2023
Human Rights In A Technological Age written by Rochelle Cooper Dreyfuss and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023 with categories.
It has long been recognized that patent rights are in tension with human rights. The Universal Declaration of Human Right posits that scientific creators are entitled to the protection of the interests resulting from their scientific production. At the same time, it recognizes the right of everyone to share in scientific advancements and the benefits they create. Typically, this tension is framed as a clash between proprietary and access interests, with discrete conflicts resolved nationally by a combination of limitations and exceptions within patent law, and internationally, with flexibilities that give states room to further access interests. There are, however, several drawbacks to this framing. It tends to limit access to things that others have created for their own purposes, it requires the global South to rely on the North to fulfill its needs, and it creates a something-for nothing narrative that makes international adjudicators wary of allowing states to enjoy significant flexibilities. This paper argues that the right to “share in scientific advancement” must be re-interpreted as a right to participate in the enterprise of scientific advancement. Recast in this way, the right would invigorate state efforts to enable locals to learn from and build on the work of others, fulfill unmet local demand, and ultimately, innovate at the knowledge frontier. At the international level, recognizing the right to do science as fundamental to human development would open policy space and allow states to do what is needed to become technologically self-reliant in areas crucial to their wellbeing.
Framing Intellectual Property Law In The 21st Century
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Author : Rochelle Cooper Dreyfuss
language : en
Publisher: Cambridge University Press
Release Date : 2018-10-18
Framing Intellectual Property Law In The 21st Century written by Rochelle Cooper Dreyfuss and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-10-18 with Business & Economics categories.
The book describes how intellectual property law is framed by theories about incentives, trade, health, development, and human rights.
Human Rights And The Wto
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Author : Holger Hestermeyer
language : en
Publisher: Oxford University Press, USA
Release Date : 2007
Human Rights And The Wto written by Holger Hestermeyer and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007 with Law categories.
This book examines one of the most controversial aspects of the world trading system: patents and access to medication, and offers approaches to tackle the issue of how to better accommodate human rights in the trading system.