The New Innovation Frontier Revisited: Intellectual Property and the European Court of Human Rights
Intellectual Property and Human Rights, Fourth Edition (Paul L.C. Torremans, ed., Forthcoming 2020)
60 Pages Posted: 6 Oct 2019 Last revised: 5 May 2020
Date Written: May 4, 2020
This chapter provides a comprehensive analysis of the intellectual property case law of the European Court of Human Rights (“ECHR”). Since the mid-2000s, the ECHR has issued several rulings applying the right of property protected by the European Convention on Human Rights to various types of intellectual property. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region’s innovation and creativity policies. The cases are also emblematic of other controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The chapter analyzes these trends, focusing on ECHR decisions through August 2019. The chapter develops three distinct paradigms to identify the proper place of intellectual property in the European human rights system. It concludes that the ECHR should find a violation of the right of property in intellectual property disputes only in cases of arbitrary government conduct.
Keywords: human rights, intellectual property, European Court of Human Rights, right to property
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