The Marrakesh Treaty as “Bottom Up” Lawmaking: Supporting Local Human Rights Action on IP Policies

Abstract

Global intellectual property rules have had adverse consequences for the promotion and protection of a range of human rights, including the rights to food, health, water, culture, equality and non discrimination, and freedom of expression. Nonetheless, these issues have been framed in human rights terms primarily at the international and regional levels. Domestic human rights advocates have largely not taken up the issue of how intellectual property law affects the enjoyment of human rights. This Article argues that this incomplete translation is due to widespread reliance on a fairly narrow understanding of human rights. Human rights, when understood only as a set of legal rules and institutions, inevitably devolves into a debate about reconciling conflicting rights. This is an important conversation, but it is also a limiting one. The emancipatory potential of human rights often lies not in its power as a set of legal rules but in the way in which those rules can be employed by affected individuals to make claims and demand political change. Using the case study of law and politics around intellectual property mobilization, the Article argues that framing intellectual property in more robust human rights terms is important for challenging the fundamental power structures that undergird the intellectual property regime. The Article then argues that the Marrakesh Treaty — a new treaty that requires states to create mandatory exceptions to copyright to protect the rights of individuals with disabilities — charts a new path for human rights advocacy on intellectual property. This treaty has the potential to lay a foundation for better translation of intellectual property issues into human rights advocacy by identifying a clear violation and by activating domestic human rights advocates. Creating a foundation for affected individuals and human rights advocates to participate in intellectual property lawmaking is essential to realizing the potential of human rights for revising the essential bargains of the international intellectual property system.