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In today’s Information Society, one of the most salient paradoxes is the fact that the law of intellectual property has been systematically used in ways that erect barriers around the very building blocks that lie at its foundation. As intellectual property law stretches to cover all kinds of information-intensive goods at an atomic level, access to raw data and educational materials is hindered, creative inputs shrink and scientific research becomes harder, costlier and, in some cases, virtually impossible. The set of limitations and exceptions offered by intellectual property laws around the world tends to be either too frail or too frailly implemented to combat intellectual property’s organic malfunctions. The emergence of digital platforms and new forms of collaborative research and creation has not been matched by flexible, open-minded laws and regulations promoting innovation. This makes intellectual property one of the most unbalanced areas in Law. Recent literature has suggested that one way of mitigating some of these problems would be to resort to human rights law as a framework when interpreting intellectual property norms. However, although an increased dialectic relationship between these two fields seems desirable, the almost remedial quality of this proposal makes it somewhat limited in scope. Also, as technology changes quickly and new forms of production of intangible goods remain elusive to predict, summoning human rights provisions as a corrective measure to intellectual property’s shortcomings might not be as illuminating as it has been in other legal areas. Nevertheless, reconsidering intellectual property norms in light of human rights’ concerns might prove useful to recalibrate the already existing, albeit rather soft-safeguard mechanisms embedded in intellectual property law: in particular, it might serve as a guide for legislators and policy makers when considering new exceptions and limitations to exclusive rights, as well for courts when interpreting broadly drafted provisions. It is impossible to have a sound public domain, which is the primary source of any kind of innovation, without a flexible intellectual property framework. Opening up intellectual property to multidisciplinary influences – among which human rights are likely to play an important role – is not only the key to fix its existing organic shortcomings, but also crucial for intellectual property to face (and finally fit in) the Information age.

Rebalancing Intellectual Property in the Information Society: The Human Rights Approach