Implementing Intellectual Property Provisions in Human Rights Instruments: Towards a New Social Contract for the Protection of Intangibles

in: Christophe Geiger (ed.), Research Handbook on Human Rights and Intellectual Property (Research Handbooks in Intellectual Property), Edward Elgar, Cheltenham, UK; Northampton, MA 2015, 661.

Max Planck Institute for Innovation & Competition Research Paper No. 14-10

36 Pages Posted: 1 Jul 2014 Last revised: 16 Dec 2015

Date Written: June 25, 2014

Abstract

Despite the crucial importance of ensuring a just balance of interests within intellectual property law, a well ‘thought-out’ IP clause is still lacking in an overwhelming majority of human rights instruments. Building upon the results of an empirical study of about 200 national constitutions and several leading international and European treaties on human rights, this chapter examines how the constitutional framework is guiding the understanding and shape of IP law. In particular, it examines different model provisions for IP included in human rights instruments and puts them in the context of selected judicial practice, general principles of legal interpretation and ‘quasi-constitutional’ rules of IP protection. Several solutions are ultimately advanced which could be envisaged in the future to construct a satisfying and balanced clause for IP at the constitutional level, capable of demonstrating by its ‘mere’ wording that intellectual property is intrinsically linked to the interests of society.

Keywords: Intellectual property, human rights, international and European law, constitutional law, right to property, freedom of expression, freedom of art and science, social function of law

Suggested Citation

Geiger, Christophe, Implementing Intellectual Property Provisions in Human Rights Instruments: Towards a New Social Contract for the Protection of Intangibles (June 25, 2014). in: Christophe Geiger (ed.), Research Handbook on Human Rights and Intellectual Property (Research Handbooks in Intellectual Property), Edward Elgar, Cheltenham, UK; Northampton, MA 2015, 661. , Max Planck Institute for Innovation & Competition Research Paper No. 14-10, Available at SSRN: https://ssrn.com/abstract=2459004

Christophe Geiger (Contact Author)

Luiss Guido Carli University ( email )

Department of Law, Via Parenzo, 11
Rome, Roma 00198
Italy

HOME PAGE: http://giurisprudenza.luiss.it/docenti/cv/353993

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