Shaping Intellectual Property Rights Through Human Rights Adjudication: The Example of the European Court of Human Rights

Abstract

In Europe, important developments such as the entering into force of the Treaty of Lisbon—which placed the Charter of Fundamental Rights of the European Union at the very top of the hierarchy of norms—and the direct applicability by national courts of the European Convention on Human Rights (ECHR) in private law disputes have been highly influential for the rise in human rights reasoning by courts deciding intellectual property (IP) issues. The envisaged E.U. accession to the ECHR is likely to increase this process further. This article reflects on these developments by studying the role of the European Court of Human Rights (ECtHR or Strasbourg Court) in shaping European intellectual property standards. It presents an updated and modified version of the chapter entitled “Intellectual Property Before the European Court of Human Rights,” published by the authors in 2018, and provides the first comprehensive overview of ECtHR case law on IP from the court’s inception in January 1959 until today, March 2020. The article results from an analysis of more than ninety such cases, many of which have never been discussed before in the literature. Certain issues that are currently pending before the Strasbourg Court are also given exposure. The article spans subjects from the protection of the rights of IP holders under the property provision of the ECHR to the possibility of restricting such protection on the basis of the right to freedom of expression and information often invoked by the users of IP-protected content. It also analyzes the situations in which freedom of expression was invoked by the (actual or potential) IP holders themselves in order, for instance, to insure that their trademark applications are registered. The potential of the right to privacy to serve both as a defense against certain IP enforcement measures—such as search orders—and as a basis for the protection of moral rights of creators is likewise discussed. The article further reviews the most prominent IP disputes which raised questions under the right to non-discrimination and the right to a fair trial. This comprehensive overview of the case law of the ECtHR shows the emergence of a human rights framework for the intellectual property system in Europe, which—in combination with the increasing use of fundamental rights by national courts to solve private party disputes—is gaining coherence and relevance in framing the conception and use of IP law.