IP Rights and Human Rights: What history tells us and why it matters

Some scholars have recently begun to question the relevance of Article 27 UDHR and Article 15 ICESCR to address the social and economic challenges raised by IP rights, partly on the grounds that the human rights proclaimed therein reflect individualist, Western, and Eurocentric values. This chapter argues that this scholarship attaches undue weight to Western, classical liberal conceptions of human rights and overlooks the role of the Latin American social justice vision of human rights in the Bogota Declaration of 1948, which greatly influenced the inclusion of social and economic rights in the UDHR.
The chapter draws on the Travaux Preparatoires for the Bogota Declaration, only recently published in full, to show the influence of the Bogota Declaration on the drafting of the provision on moral and material interests of authors and inventors in Article 27(2) UDHR. The analysis is combined with a study of the origins and aims of protecting the “moral” rights of authors in the Berne Convention to draw out the similarities, differences and overlap. The first part of the chapter sets out the controversy which has erupted about the interface between IP rights and human rights and the human rights sceptics’ arguments. The second part retraces the origins and purpose of the “moral” rights of authors in the Berne Convention 1928, revealing how its contested and ambiguous meaning facilitated its partial transplant in Article 27(2) UDHR. The final part contrasts the provisions on protection of intellectual property rights in Berne, with the aims of the Bogota Declaration adopted by socialist South American countries whose delegates pressed for the inclusion of the moral and material interests of authors in Article 27(2). This novel, comparative study of the genesis and normative foundations of Article 27 UDHR charts an interpretive route towards recovering the Latin American ideals of universal human rights as foundations of social and economic justice which animated its drafting.