Intellectual Property and Human Rights in the Nonmultilateral Era

In the past decade, the European Union and the United States have actively established bilateral, plurilateral, and regional trade and investment agreements. While the United States developed free trade agreements (FTAs), with a strong focus on trade, investment, and related areas, the European Union negotiated both FTAs and economic partnership agreements (EPAs) with its trading partners. Compared with FTAs, EPAs seek not only to promote free trade, but also to facilitate economic integration and stimulate local development.

In addition to the United States and the European Union, emerging countries such as China and India have negotiated their own nonmultilateral trade agreements. Although these agreements bear some similarities to FTAs and EPAs, they also differ significantly in terms of their language, underlying goals, and negotiating approaches.

It remains to be seen whether these myriad agreements will eventually spark a race among the major trading powers, or even result in a “battle of the FTAs.” It is also unclear whether the recent agreements will subsequently be consolidated into a new multilateral arrangement. Nevertheless, there is no denying that the establishment of these agreements has ushered in a new era of nonmultilateralism, which has raised difficult questions concerning appropriate policy responses. The arrival of this era has also rendered inadequate the existing literature on the interrelationship among various international regimes.

The relationship between intellectual property and human rights is an area that deserves our renewed attention. Although commentators have examined at length the conflict and tension between these two regimes, as well as the human rights impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the intellectual property provisions in nonmultilateral agreements have generated new issues and problems while bringing to the debate many new voices. With the recent adoption of the Anti-Counterfeiting Trade Agreement (ACTA) and the ongoing negotiation of the Trans-Pacific Partnership Agreement (TPP), it is high time we revisit the debate on intellectual property and human rights.

This Article closely examines the human rights impact of the intellectual property provisions in TRIPS-plus nonmultilateral agreements. Part I demonstrates that the debate on intellectual property and human rights deserves our renewed attention. This Part further identifies five sets of new developments that justify a reexamination of the complex interplay between intellectual property and human rights.

Part II outlines the challenges inherent in any analysis of the interface between intellectual property and human rights. Building on the human rights framework for intellectual property I have previously developed, this Part notes the overlap between the intellectual property rights protected under TRIPS-plus nonmultilateral agreements and the rights recognized in existing international or regional human rights instruments. It underscores the importance of distinguishing the human rights attributes of intellectual property rights from the non-human rights aspects of intellectual property protection.

Part III examines the relationship between TRIPS-plus nonmultilateral agreements and the human rights system. This Part discusses the compatibilities between intellectual property provisions in these agreements and the human rights system as well as the resulting synergies created within the system. This Part also examines the various impediments nonmultilateral agreements pose to greater protection of human rights. It discusses, in particular, the conflicts and inconsistencies within these agreements, the lost opportunities for promoting human rights, and the indirect systemic tension that the agreements have generated within the human rights system.

Part IV concludes with a discussion of normative and systemic adjustments that seek to alleviate the tension or conflict between TRIPS-plus nonmultilateral agreements and the international human rights system. It is my hope that these adjustments will help to strike a more appropriate balance between the protection and enforcement of intellectual property rights and the commitments made in international or regional human rights instruments.


Featured here is the first part of a paper by Peter K. Yu, Kern Family Chair in Intellectual Property Law and Founding Director of the Intellectual Property Law Center at Drake University Law School. Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law. He also writes and lectures extensively on international trade, international and comparative law, and the transition of the legal systems in China and Hong Kong. The full article can be found here.

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