Human Rights & Intellectual Property: Case Study Analysis - Module 3

This assignment analyzes a case study exploring the complex relationship between intellectual property and human rights, specifically focusing on the right to health and the right to education within the context of a least developed country facing a malaria outbreak. The student's response addresses the claims that could be brought by Dr. Davide, considering the relevant articles from the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, including the potential application of compulsory licensing and the exclusion of patentability for public health reasons. The response also outlines the government's potential defenses, emphasizing the role of patents in incentivizing medical investments and the limitations of compulsory licensing. Finally, the assignment discusses the ways in which human rights can be restricted, differentiating between the rights protected under ICCPR and ICESCR and addressing the concept of non-derogable rights, limitations and derogations.

Running head: INTELLECTUAL PROPERTY AND HUMAN RIGHTS
INTELLECTUAL PROPERTY AND HUMAN RIGHTS
Name of Student
Name of University
Author Note

1INTELLECTUAL PROPERTY AND HUMAN RIGHTS
Answer 1
In the case Dr. Davide can bring claims against the right to health and the rights to
education mentioned in the Universal Declaration of the Human Rights and protected under the
International Covenant on Economic Social and Cultural Rights. The human right to health is
protected under the Article 12 of the ICESCR. Article 12 recognizes the right of a human to
attain highest standard of physical and mental health. Articles 13 and 14 mentions the right to
education for everyone for the full development of human personality and strengthening human
rights and fundamental freedom. For the rejection of the compulsory licensing of the device he
could have apply for the waiver that has been extended by the World Trade Organisation
allowing poor countries to copy patented medicines but since his country is already a party to
TRIPS his application would not be successful. Dr. Davide can further bring claims under the
Article 27.2 of the TRIPS. Article 27.2 of the TRIPS state that for the protection of public
morality including the protection of health of human, animals or plants the States may exclude
patentability of inventions. Further the Article 15 of the ICESCR mentions the right of a human
being to be benefitting from scientific progresses and applications and from protection the
material and moral interests. He can further claim that Section 119C of the Patents Act an
exemption is given against patents for research purpose.
Answer 2
The government can defend those claims by arguing for the helpfulness of patents in
medical and educational fields. There have been numerous arguments by various pharmaceutical
companies that patents can be necessary to increase pharmaceuticals’ investments. The

2INTELLECTUAL PROPERTY AND HUMAN RIGHTS
government can further argue for the limits of compulsory licensing under the Article 31F of the
TRIPS agreements. Trademarks on medicines and medical devices can aid to protection of health
by permitting seizure of counterfeit products.
Answer 3
It is seen that human rights can be restricted in a number of ways. Rights permitted in
way of ICCPR are different than the rights permitted in way of ICESCR. There are however
certain non-derogable rights that are subject to progressive realization, like the right to be free
from torture, are not permitted. Some rights are also subject to internal limitations. These
limitations are limitation on the rights to freedom of expression, , progressive realization of
economic, social, ad cultural rights.
 Article 19 (3) of the ICCPR provides limitation on the rights to freedom of
expression discussed in the Article 19 (2) of the covenant.
 Article 4(1) of the ICCPR provides the derogation of human rights by the State in
time of public emergency threatening the life of the nation.
 Article 4 of the ICESCR provides the progressive realization of fulfillment of
economic, social and cultural rights.

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Reference
International Covenant on Civil and Political Rights
International Covenant on Economic Social and Cultural Rights
Patents Act 2013
Trade-Related Aspects of Intellectual Property Rights
Universal Declaration of the Human Rights