Faculty Publications


Human Development as an Intellectual Property Metric

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The need to balance the interests of the creator against the interests of the public is a recurring theme in international intellectual property (“IP”) law. This is reflected in the access to medicines, access to food, and access to knowledge movements, among others. The access to medicines movement has been relatively effective, with civil society insisting that patented medications to treat serious illnesses, such as HIV and cancer, should be made available and affordable to those who need them. Questions about IP’s impact on development also arise with respect to food and education. For instance, should farmers be prohibited from the traditional farming practice of collecting seeds and replanting them if the seed is a genetically modified patented product? If piracy increases literacy, should some piracy be tolerated? The question of whether to encourage greater protection or greater access may be framed as a distinction between the public interest and private interests. To some extent, this appears to align with the debate about the natural rights and utilitarian approaches to IP. The natural rights argument is based on the premise that creators enjoy some natural entitlement to IP protection.1 Under the utilitarian view, the protection is not a natural entitlement but rather it is designed to serve a particular purpose, such as stimulating innovation.2 International IP law is neither clearly utilitarian nor natural rights based. On closer examination, concerns about excessive IP protection are about something more than the dichotomy between public and private interests.