Intellectual Property before the European Court of Human Rights
Published in: Christophe Geiger, Craig A. Nard and Xavier Seuba (eds.), “Intellectual Property and the Judiciary”, EIPIN series Vol. 4, Cheltenham (UK)/Northampton, MA (USA), Edward Elgar Publishing, 2018, pp. 9-90.
80 Pages Posted: 2 Feb 2018 Last revised: 27 Feb 2019
Date Written: February 5, 2018
In the past years, the European Court of Human Rights (ECtHR, or Strasbourg Court), Europe’s principal human rights watchdog, has played an ever larger role in the resolution of intellectual property (IP) disputes. The ECtHR’s engagement in IP adjudication has already influenced national judges, who increasingly have recourse to human rights to solve cases between private parties, thus calling for closer scrutiny of the Court’s practice on this matter. The present chapter provides the first comprehensive overview of the ECtHR case law on IP for the period since the Court’s inception (in January 1959) until today (February 2018). It results from an analysis of more than 90 such cases, many of which have never been discussed before in the literature. Certain issues that are currently pending before the Strasbourg Court are also given exposure.
The chapter spans subjects from the protection of the rights of IP holders under the property provision of the European Convention on Human Rights (ECHR) (Article 1 of the First Protocol to the Convention) to the possibility of restricting such protection on the basis of the right to freedom of expression and information (Article 10 ECHR) often invoked by the users of IP-protected content. We also discuss the potential of the right to privacy (Article 8 ECHR) to serve both as a defence against certain IP enforcement measures (such as search orders) and as a basis for the protection of moral rights of creators. The most prominent IP disputes which raised questions under the right to non-discrimination (Article 14 ECHR) and the right to a fair trial (Article 6 ECHR) are also discussed in detail. This comprehensive overview of the case law of the ECtHR shows the emergence in Europe of a human rights framework for the intellectual property system, which – in combination with the increasing use of fundamental rights by national courts to solve private-party disputes – is gaining in coherence and relevance when framing the conception and use of IP law.
Keywords: European Court of Human Rights; Strasbourg Court; Intellectual Property
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