Building an Ethical Framework for Intellectual Property in the EU: Time to Revise the Charter of Fundamental Rights

Abstract

The importance of fundamental rights for shaping the contours and use of intellectual property (IP) in the European Union has not stopped growing in recent times. However, the constitutional framework for intellectual property has not been appropriate to cope with this development. In particular, article 17(2) of the Charter for Fundamental Rights of the EU, which vaguely states that “intellectual property shall be protected”, does not provide answers on many important questions such as who should benefit from the protection, what are the obligations on States resulting from this provision, what is the exact meaning of intellectual property in the constitutional context, and how this protection relates to other social values that are to be promoted by IP rules, such as access to science and culture. This is surprising since the international human rights treaties which could have served as models are far more elaborate when it comes to the protection of intangibles.

Therefore, in order to ensure an ethical framework for intellectual property in the European Union in the future, this paper argues that it is urgent to revise the Charter, and advances three concrete text proposals for a balanced and inclusive IP clause. First, IP could be classically located within a revised and conditioned provision on property protection (revision of article 17); second, in a more purpose-oriented approach, IP could be located within the Right to Science and Culture (revision of article 13); and finally, in advancing a more modernised, dialogic and participative understanding for the protection of creative outputs IP could be located within Freedom of Expression and Information (revision of article 11).

Keywords: Intellectual Property, Ethics, Fundamental Rights, Charter