17 - Business and Human Rights Approaches to Intellectual Property

Summary

The relationship between business activity and human rights in the context of intellectual property (IP) is unique. First, it is an example of how national efforts to control the human rights impact of business activities can be frustrated by international agreements. Thus, the obligation under the Guiding Principles for states to maintain sufficient national policy space to address human rights impacts is particularly important in this area. Corporations also have a responsibility not to push for changes in domestic and international law that would enable them to maximize profits at the expense of human rights. Second, the case of human rights and IP provides an example of corporations taking advantage of legal rules that allow them to extract profits at the expense of human rights. These legal rules are directed toward a legitimate purpose, but they can also be abused in ways that harm human rights. Thus, the relationship between IP and human rights demonstrates that corporations may have a responsibility not to take maximal advantage of opportunities to make a profit where doing so would violate human rights. It also indicates that human rights law may constrain states in the choices they make about how to incentivize innovation.