The curious absence of human rights: Can the WIPO Development Agenda transform intellectual property negotiation?

Abstract

This article examines international negotiation of global intellectual property protection standards. Developing countries favour more flexible international rules, while developed countries push for higher mandatory protection levels. Developing countries base their positions on primary principles of intellectual property law: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; developed states counter-argue that stronger protection achieves the same ends. The article examines the resulting circular discussions at the 2001-2003 WTO Doha negotiations on TRIPS and Public Health, and the WIPO Development Agenda talks since 2004. The contention is that the negotiation impasse stems from an inability to move beyond the cost-benefit tension inherent in the patent system. Intellectual property theory cannot provide a bottom line at which short-term costs of patent monopolies must be deemed unacceptable, regardless of anticipated longer-term benefits. Recently, developing countries have celebrated the WIPO Development Agenda as a “paradigm shift” in the approach to international IP protection. The author argues that the Development Agenda will not necessarily change anything, and that developing countries should introduce human rights standards into discussions if they want to move the debate forward. Human rights standards can be used as benchmarks to assess whether IP rules promote public benefit and achieve an acceptable balance between rights of patent-holders and the broader public interest. The article shows how the ICESCR can be used to support a human rights-based argument.