The Fundamental Right to Property and the Protection of Investment: How Difficult Is It to Repeal New Intellectual Property Rights?

Abstract

In the 2010s, we are witnessing a number of policy debates concerning proposals for new intellectual property rights. The high-profile examples include publishers’ rights, data producers’ rights, and sport events organizers’ rights. The arguments behind these rights are purely utilitarian, unlike in the case of some traditional intellectual property rights, such as authors’ or inventors’ rights. These rights are clearly presented as tools of the European Union (EU) innovation policy, incentivizing quality journalism, data creation and trading or investments in sports. However, how sticky are these tools?

A lot of attention in the literature rightly focuses on the first-order issue of their social costs and benefits. Little attention is paid to the problem of institutional inertia which keeps some of these solutions in circulation despite their proven ineffectiveness. While economic progress is unthinkable without stable property rights, it is equally unthinkable without their never-ending adjustment and continuous reflection of their effects. In this article, I pose the following question: how difficult is it to legislate away a new set of intellectual property rights once they are found to be incapable of delivering on their promises?

Keywords: Intellectual Property, Investment Protection, Property, Human Rights, Article 17(2), EU Charter