The Fundamental Right to (Intellectual) Property and the Discretion of the Legislature
Christophe Geiger (ed.), Research Handbook on Human Rights and Intellectual Property, 2015, 132-148
21 Pages Posted: 12 Sep 2013 Last revised: 10 Feb 2016
Date Written: September 11, 2013
The article makes two points regarding the fundamental rights dimensions of intellectual property (IP). First, it explains why the prevailing approach to balancing the fundamental right to intellectual property with conflicting fundamental freedoms as if they were of equal rank is conceptually flawed and should be replaced by a justification paradigm. Second, it highlights the pre-eminent role of the legislature and the much more limited role of the judiciary in developing IP law. The arguments are based on an analysis of the jurisprudence of the European Court of Human Rights (ECHR), the Court of Justice of the European Union (CJEU) and last but not least the German Constitutional Court, the Bundesverfassungsgericht, regarding the respective inter-/supra-/national fundamental-rights regimes.
Keywords: intellectual property, fundamental rights, human rights, european convention human rights, european union, charter, balance
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