Reconceptualizing the Constitutional Dimension of Intellectual Property – An Update

Abstract

This paper is an updated version of the chapter entitled “Reconceptualizing the Constitutional Dimension of Intellectual Property” which appeared in the previous edition (3rd) of the volume edited by Paul Torremans entitled “Intellectual Property and Human Rights”. It draws on previous research published by the author on the ongoing “constitutionalization” of intellectual property rights through the increasing use by legislators and courts of human rights to shape the contours of the exclusive rights. The paper incorporates the most recent judicial developments at EU level which confirmed the full validity and legitimacy of the use of fundamental rights to interpret and adapt IP laws. Drawing on these developments, it advances several proposals in order to construct a satisfying and balanced clause for IP at constitutional level, demonstrating thus a closer connection to the interests of society. First, the chapter proposes to link IP with the universally recognized right to culture and science, thereby mirroring a solution adopted at international and national levels in several countries. Second, it explores the protection that could be offered by the constitutional right to freedom of expression and information. Finally, the inclusion of IP within the protection of property at the constitutional level is analyzed. It is demonstrated that the link with the property provision often guarantees that the social function of this right is extended to intellectual property. When combined with the proportionality principle that mandates a fair balance between competing fundamental rights, intellectual property is far from absolute and can on the contrary be limited by the interest of the society at large.

Keywords: intellectual property rights,fundamental rights, Constitutional Dimension of Intellectual Property