ABSTRACT

Intellectual property and human rights constitute two comprehensive, expansive, and previously unrelated legal regimes that have become increasingly intertwined over the past few decades. Both are grounded in rights discourse (property or human dignity foundations), are often moored by international agreements such as conventions and international trade treaties, rely upon institutions of global governance, and have expanded the scope of their legal reach to new subjects and across international borders, in rapid, even vertiginous fashion. The interface between the two regimes has become a rights thicket. Which set of rights should trump? And – as an animated academic and policy debate has queried – are intellectual property rights and human rights complementary or competing systems? Both are rights-based regimes. However, the human rights regime tends to resolve conflicts by seeing rights as legal trumps, while intellectual property generally balances competing rights claims. While previous analysis of the jostling between intellectual property and human rights has focused on recent interactions, this essay is the first sustained examination of their encounters from the eighteenth century to our own times.