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The Compatibility between Human Rights and Intellectual Property

September 29, 2017

World Health Organisation (WHO) 1946 defines health as a state of complete physical, social, and mental well-being. The primary instrument of United Nations is the Universal Declaration of Human Rights (UDHR) 1948. It declares in (Article 25(1)) that every person is entitled to a standard of living appropriate for his or her well-being and health, which includes access to housing, social care, and medical treatment. One of the two international treaties of UDHR is the International Covenant on Economic, Social and Cultural Rights 1986 (ICESCR). ICESCR recognises in Article 12 of the right of everyone to 'the highest attainable standard of physical and mental health'. Both of them have negative impact on the intellectual property.

One of the three core World Trade Organisation (WTO) agreements, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), stated that it is to take into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade. As I mentioned above, there are conflicts between the protection of human rights and the protection of intellectual property. So, do we protect the intellectual property rights of the scientists so that they can obtain their maximum material interest or do we protect the human rights of the access to health?

United Nations' Economic and Social Council's Resolution 200017 (ECOSOC) Section V stated that a balanced approval could and should be utilised to ensure an appropriate human rights regime which considers authors' moral and material rights as well as concerns for access to healthcare, food and education. Do remember that if the intellectual property owners asked for too much from the market or set the bar too high for others to attain, there will be market failure which means when there is no market for a good due to price beyond the market's ability to pay. This is also stated in the Section VI of the ECOSOC.

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