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Journal of Intellectual Property Law & Practice Advance Access published online on June 10, 2009
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpp089
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© The Author (2009). Published by Oxford University Press. All rights reserved.

Protection of public interests through a human rights framework in the TRIPS Agreement: realities and challenges

Mohammad Towhidul Islam*
Legal context: The protection of IP rights as a trade issue has long been the subject of human rights debate between IP rights owning developed countries and IP rights using developing countries. Proponents of the TRIPS Agreement hold that IP rights qualify as human rights since they have moral standing and developmental value to assist the enjoyment of other rights.

Key points: This author argues that IP rights take on protectionist trade implications and monopolistic ownership traits because of their inclusion in the developed country dominated-TRIPS Agreement. Such features lead IP rights to clash with the principle of free trade and comparative advantage. This conflict encourages monopolization and restricts comparative advantages of developing and least developed countries in reverse engineering of knowledge products. As a consequence, developing and least developed countries lag behind in fulfilling their developmental needs or protecting public interests in agriculture, health, biodiversity, economic developments, etc. Consequently, this raises concerns regarding a broad range of human rights including right to health and life, right to food, right to education, privacy and expression, indigenous people's rights, and so on.

Practical significance: For the protection of public interests, this article recommends the establishment of a human rights framework in the TRIPS Agreement by incorporating a human rights reference for IP protection.

Correspondence: * Macquarie University, Sydney, Australia. Email: towhid.islam{at}law.mq.edu.au


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