Intellectual Property Rights and Integration by Conflict: The Past, Present and Future

Cambridge Yearbook of European Legal Studies, Volume 18, pp. 239-269, 2016

Posted: 15 Nov 2016

See all articles by Martin Husovec

Martin Husovec

Tilburg Law and Economics Center (TILEC); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Stanford University - Stanford Law School Center for Internet and Society

Date Written: Novemeber 15, 2016

Abstract

This paper analyses how the Court of Justice of the European Union resolves conflicting situations surrounding intellectual property rights (IPR). More specifically, it looks into how it approaches clashes of IPR with other fundamental rights and economic freedoms and with what consequences. Building upon previous literature, I advance the argument that the resolution of the conflict, by means of the proportionality interest-balancing exercise, pursues a pro-harmonisation agenda not only in the obvious context of free movement, but also in the setting of fundamental rights. I show that the recent Coty Germany ruling is likely to accelerate this trend because of its recognition of positive obligations of the Member States in the context of fundamental rights. It is argued that this could also be used by national courts to improve an existing IPR framework, in particular by filing preliminary references that question legislators’ choices such as non-implementation of permissible exceptions and limitations. After highlighting the importance of maintaining a separation between different policy levels (secondary law vs Charter), I outline why Coty Germany is a very worrying reading of Article 17(2) of the EU Charter, and suggest that this could be remedied by synchronising its interpretation with the Court’s doctrine of ‘specific subject matter’ in the context of free movement.

Keywords: Intellectual Property, Art 17(2) EU Charter, Positive Obligations, Free Movement of Goods and Services, Exceptions and Limitations, Remedies

Suggested Citation

Husovec, Martin, Intellectual Property Rights and Integration by Conflict: The Past, Present and Future (Novemeber 15, 2016). Cambridge Yearbook of European Legal Studies, Volume 18, pp. 239-269, 2016. Available at SSRN: https://ssrn.com/abstract=2868308

Martin Husovec (Contact Author)

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Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

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Stanford University - Stanford Law School Center for Internet and Society ( email )

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