Human rights and intellectual property: a study from the teachings of the master Denis Borges Barbosa

Abstract

The study analyses the recognition of intellectual property rights as human rights in the Brazilian legal order. It starts from the finding that Article 5, XXIX, of the Federal Constitution originates in Article 27.2 of the Universal Declaration of Human Rights and in Article 15.c of the International Covenant on Economic, Social and Cultural Rights, both in force in Brazil and incorporated into the legal order also by force of paragraphs 2 and 3 of Article 5 of the Constitution, alongside the TRIPS Agreement, internalised by Decree No. 1,355/94. It examines the supra-legal or constitutional hierarchy of human rights treaties, the joint interpretation of the paragraphs of Article 5 after Constitutional Amendment No. 45/2004 and pronouncements of the Federal Supreme Court, and reproduces the central points of General Comment No. 17, adopted in 2005 by the Committee on Economic, Social and Cultural Rights of the United Nations Economic and Social Council. It holds that the rights referred to in Article 5, XXIX, are human rights of immediate application and that subsequent ordinary statutes have no normative standing to amend or repeal the provisions of human rights conventions and of the TRIPS Agreement.