Criminal Liability for Intellectual Property Infringement in Europe – The Role of Fundamental Rights

Abstract

The relationship between fundamental rights and intellectual property has long been recognised. The rights to life and to health have been understood as relevant to debates about the patenting of biotechnological inventions and the right to freedom of expression has had an impact in both copyright and trade mark law. The need to ensure the protection of fundamental rights in intellectual property law has been acknowledged both by the EU legislature and by the Court of Justice. However, the specific relationship between criminal sanctions in intellectual property law and fundamental rights protection has received little attention. It is my aim, in this chapter, to make a preliminary survey of the role that legal protection for fundamental rights may come to play in criminal proceedings for infringement of intellectual property rights. The focus is upon Europe because, within Europe, there is both a highly developed framework of fundamental rights protection and a clear set of legislative proposals for the strengthening of criminal sanctions for intellectual property infringement.

Keywords: Intellectual Property; Human Rights; Fundamental Rights, European Convention on Human Rights, EU Charter on Fundamental Rights; Right to Property, Fair Trial, Due Process, Privacy, Freedom of Expression, Criminal Law, Criminal Sanctions

JEL Classification: K00