Intellectual Property, Human Rights and Methodological Reflections
HANDBOOK ON INTELLECTUAL PROPERTY RESEARCH: LENSES, METHODS, AND PERSPECTIVE, Irene Calboli and Lillà Montagnani, eds., Oxford University Press, 2021, Forthcoming
15 Pages Posted: 11 Sep 2018 Last revised: 11 Aug 2020
Date Written: September 10, 2018
Since the mid-2000s, scholars have paid considerable attention to the interface between intellectual property and human rights. Today, one can easily find books and law review articles on the subject. Initially, most of these discussions focused on topics such as access to essential medicines, access to knowledge, and the protection of traditional knowledge and traditional cultural expressions. In recent years, however, the literature has been expanded to cover new or underexplored areas, such as Internet-related human rights, the right to science and culture, the use of human rights impact assessments in the intellectual property area, the human rights challenges posed by bilateral, regional, and plurilateral trade agreements, and, more recently, human rights issues implicated by artificial intelligence.
Although scholarship on intellectual property and human rights has been growing rapidly, commentators rarely articulate the different methods used to conduct research in this area (even though some of the past scholarship has revealed careful and thoughtful methodological choices). It will therefore be beneficial to devote greater attention to methodological rigor, especially with the benefit of the burgeoning literature on human rights research methods and methodology. Greater methodological engagement will also help refine existing human rights approaches to intellectual property while devising new ones to advance the promotion and protection of human rights in the intellectual property area.
This chapter reflects on the methodological choices that the author has made in prior works on intellectual property and human rights. Specifically, the chapter explores three methodological choices: (1) the choice between a positivist and philosophical conception of human rights; (2) the choice between historical and evolutive interpretations of human rights instruments; and (3) the choice of developing a layered hierarchical structure to systematically analyze the myriad human rights interests involved and their interplay. Focusing on these choices, this chapter aims to highlight the strengths and limitations of each methodological approach while providing first-hand insights into how researchers select their methods and approaches.
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