Protection of Intellectual Property Rights as Human Rights in International Law

Abstract

This article analyses specific international human rights instruments that may be useful in the interpretation of section 25 (the property clause) of the Constitution of the Republic of South Africa, 1996, (the Constitution) as regards the constitutional recognition and protection of intellectual property (IP) rights. It does not deal with intellectual property treaties in any detail, but only human rights instruments, and addresses only those IP rights generally recognised and protected as property in private law. The following definition of IP suffices:

The term intellectual property encompasses the right to control the use of the fruits of intellectual endeavour, that is, the products of the mind. Intellectual property takes the form of inventions which are protected as patents, designs of articles which are registered as designs, literary, artistic and other works which are protected by copyright and product brands which are protected by registration as trademarks or under the common law remedy of passing off.