The curious absence of human rights: Can the WIPO Development Agenda transform intellectual property negotiation?

This paper examines international negotiation of global intellectual property protection standards. Developing countries favour more flexible international rules, while developed states push for higher mandatory protection levels. In previous negotiations, developing countries have based their positions on primary principles of intellectual property law – its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; developed states counter-argue that stronger protection achieves the same ends. The paper examines the resulting circular discussions at the 2001-2003 WTO Doha negotiations on TRIPS and Public Health, and at the WIPO Development Agenda talks since 2004. The paper argues that the negotiation impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longer-term benefits.Recently, developing countries have celebrated the WIPO Development Agenda as a “paradigm shift” in the approach to international IP protection. This paper argues that the Development Agenda will not necessarily change anything, and that developing countries should introduce human rights standards into the discussion if they want to move the debate forward. Human rights standards can be used as benchmarks to assess whether IP rules do indeed promote the public good and achieve an acceptable balance between the rights of patent-holders and the broader public interest. The paper shows how the ICESCR can be used to support a human rights-based argument.