A Market-Friendly Human Rights Paradigm for Intellectual Property Rights in Europe?

Abstract

This chapter explains that in the new variants of constitutionalism, human rights are perceived as critical normative counterweights to the extension of market-friendly rights privileging the protection of fiscal policies, the free movement of capital assets across borders, and the interests of investors over democratic processes, communities, and people. From this perspective, the European Convention on Human Rights (ECHR) and EU Charter of Fundamental Rights, which extend the right of property to legal persons, strike a discordant note by comparison with other international human rights instruments. The chapter investigates the origins of this incongruity. It shows that, paradoxically and contrary to the prevailing view, the rationale for the extension in the ECHR was to enable states to counteract the adverse social and economic impact of untrammelled exploitation of property and accumulation of profit. The chapter then examines the jurisprudence of the European Court of Human Rights (ECtHR) through this prism and considers how the Court may recover the normative ideals of human rights law. It also draws out the implications and challenges for the interpretation of IP rights in the EU Charter of Fundamental Rights.