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The Right to Development and Intellectual Property

Since the Senegalese jurist Keba M’baye first advanced it in 1972, the idea of a ”right to development” has been the focus of an extensive but largely theoretical debate. Jurists from the South enumerated the possible subjects and objects of this right while jurists from the North questioned whether it existed at all. However, the adoption by the United Nations General Assembly of a Declaration on the Right to Development (DR2D) did helped to resolve the differences and also to narrow the divide although some argue that on the contrary, the artfully vague text of the DR2D attracted new jurisprudential speculations. However, these arguments are beyond the scope of this short article whose main objective in essence is to underscore that the right to development (R2D) has found a new lease of life within the context of intellectual property rights especially within the framework of the World Intellectual Property Organisation (WIPO).  

The World Intellectual Property Organisation Development Agenda (WIPO DA) is a landmark intitiative to ensure that Intellectual Property Rights (IPRs) are addressed within the broader context of economic, social development and the public interest. The WIPO DA is therefore one of the important, if not arguably, the most important global initiative to move forward the R2D especially within the context of the implementation of the forty five recommendations of the Development Agenda particularly the one on technology transfer. The centrality of technological transfer in development processes cannot be overemphasised as it plays a pivotal role in all the facets of human life from health security to food security and in general to human security. It can thereforebe gleaned that intellectual property rights are important tools that can be harnessed for the realisation of economic social and cultural rights. In this regard it is imperative to take note and understand the centrality of article 7 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)which underlines that: the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights ad obligations.

From this perspective, the implemntation of the WIPO DA has enormous potential for advancing the implementation of the right to development which was proclaimed by the United Nations in 1986 under UN GA Resolution 41/128. However, this connection remains relatively unknown. The WIPO DA implementation process is not closely followed by the human rights community and the relavance of the R2D framework is not often well understood in the intellectual property (IP) community.

It is therefore important to find ways of how a human rights based aproach can be effectively used to ensure an effective implementation of the WIPO Development Agenda. Recommendation 35 of the WIPO DA requests WIPO ”to undertake, upon request of Member States, new studies to assess the economic social and cultural impact of the use of intellectual property system in these states”. At the First Session of the Committee on Development and Intellectual Property (CDIP)- a WIPO Committee in charge of the WIPO DA- the Office of the High Commissioner for Human Rights (OHCHR) encouragedMember States and the Committee to consider the use of human rights impact assessment in developing a work programme for implementation of the recommendation bearing in mind, the internationally rcognised human rights in the economic social and cultural fields. Yet not much has been done since then to heed this call.

Achieving greater coherence to bridge this gap, in the context of the wider nexus between intellectual property and human rights, therefore requires a sustained effort of dialogue, information and policy analysis and research. It is in this context that the Right to Development, arguably the overarching embodiment upon which all other rights can be achieved, can be attained for the benefit of all peoples of the earth.

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