Intellectual Property Law - and Human Rights Finding an Intertwined Way to Promote Development in Developing Countries
The World Trade Organization (WTO) was established in 1994.1 Its member states, developing and developed countries have consequently cooperated more than 17 years on issues such as free trade, intellectual property protection and development. Many of the issues that are important to developing countries, like the protection of traditional knowledge, the right to development and access to medicines, have been brought up for discussion even though the economic and social development, especially on Africa’s part, has not been as fast as expected. The right to development was adopted in UN’s declaration in 1986.2 In the declaration, achieving a balance between individuals, groups and states is mentioned as a vital factor in reaching a higher level of development. The international intellectual property system is facing a crisis that highlights the need for a common framework for human rights and intellectual property laws. This kind of framework should aim at defining which system protects whom; the scope of protection; and who receives protection within the framework. It should also define whether the standards that already exist are legally binding and if so, whom these standards bind. Additionally, such framework should form rules that solve the currently existing conflicts between overlapping international and national laws. There is also a need for an institutional actor that would regulate the variety of different lawmaking actors that are currently active in the field, in order to reach sustainable solutions globally. This essay identifies how intellectual property law could help transform conceptions of human rights in aid, into a stronger and more sustainable development process. The second chapter examines what human rights and intellectual property protection has traditionally entailed, focusing also on the intertwined nexus between human rights and intellectual property law. The third chapter begins with presentation of the legal tools that exist, and continues to sketch development tools that could be useful within intellectual property regulation. The fourth chapter describes current problems and examines Okediji’s human rights and cultural narratives that could help form more sustainable legal instruments. Finally, I will draw the conclusion that although there are still many unsolved problems the development is in the hands of developing countries, and not outside their influence.
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