The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations

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dc.contributor.advisorKinderlerer, Julianen_ZA
dc.contributor.authorBarratt, Amandaen_ZA
dc.date.accessioned2014-07-30T17:58:00Z
dc.date.available2014-07-30T17:58:00Z
dc.date.issued2008en_ZA
dc.descriptionIncludes abstract.
dc.descriptionIncludes bibliographical references (leaves 310-370).
dc.description.abstractThe patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-2003 Doha negotiations and the WIPO Development Agenda talks since 2004. I argue that the impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Economists have been unable to resolve this tension by identifying optimal protection levels. Furthermore, 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 longerterm benefits. The developing states' negotiating stance will be strengthened if a bottom line can be identified. I argue that the International Covenant on Economic Social and Cultural Rights provides benchmarks to fulfil this function. ICESCR obligations are specific, objective, and measurable; they have international legitimacy; and they bind almost all states. I examine the Article 12 right to health to show that states violate the ICESCR if they ratify other treaties which reduce policy space and make it more difficult for states to adopt policies to meet their domestic or extraterritorial obligations. I also examine Article 15, concluding that it is insufficiently developed to offer firm guidelines. I use insights from international relations theory to examine the practical possibilities of adopting a human rights-based approach, and argue that the strategy will become progressively more effective as human rights norms are internalized through the negotiating process and by other means.en_ZA
dc.identifier.apacitationBarratt, A. (2008). <i>The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations</i>. (Thesis). University of Cape Town ,Faculty of Law ,Intellectual Property Research Unit. Retrieved from http://hdl.handle.net/11427/4431en_ZA
dc.identifier.chicagocitationBarratt, Amanda. <i>"The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations."</i> Thesis., University of Cape Town ,Faculty of Law ,Intellectual Property Research Unit, 2008. http://hdl.handle.net/11427/4431en_ZA
dc.identifier.citationBarratt, A. 2008. The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Barratt, Amanda AB - The patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-2003 Doha negotiations and the WIPO Development Agenda talks since 2004. I argue that the impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Economists have been unable to resolve this tension by identifying optimal protection levels. Furthermore, 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 longerterm benefits. The developing states' negotiating stance will be strengthened if a bottom line can be identified. I argue that the International Covenant on Economic Social and Cultural Rights provides benchmarks to fulfil this function. ICESCR obligations are specific, objective, and measurable; they have international legitimacy; and they bind almost all states. I examine the Article 12 right to health to show that states violate the ICESCR if they ratify other treaties which reduce policy space and make it more difficult for states to adopt policies to meet their domestic or extraterritorial obligations. I also examine Article 15, concluding that it is insufficiently developed to offer firm guidelines. I use insights from international relations theory to examine the practical possibilities of adopting a human rights-based approach, and argue that the strategy will become progressively more effective as human rights norms are internalized through the negotiating process and by other means. DA - 2008 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2008 T1 - The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations TI - The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations UR - http://hdl.handle.net/11427/4431 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/4431
dc.identifier.vancouvercitationBarratt A. The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations. [Thesis]. University of Cape Town ,Faculty of Law ,Intellectual Property Research Unit, 2008 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/4431en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentIntellectual Property Research Uniten_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherIntellectual Property Lawen_ZA
dc.titleThe battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiationsen_ZA
dc.typeDoctoral Thesis
dc.type.qualificationlevelDoctoral
dc.type.qualificationnamePhDen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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