Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 2: Human rights and balancing: The principle of proportionality
The European Court of Human Rights (ECtHR) has over the last 50 years developed the principle of proportionality into an indispensable tool to balance conflicting interests and adjudicate disputes placed before it. Proportionality cannot be viewed as a simple formulae that can be readily applied to solve complex political and legal questions. Proportionality is undeniably a complex matter that needs to be thoroughly analysed and comprehended to properly understand the role of human rights – and also how it affects intellectual property rights. The principle of proportionality is an independent means of interpretation developed alongside other canons of construction. Proportionality is often considered in the context of limitations of rights,but the principle of proportionality is applied far beyond the confines of limitation clauses, and proportionality is not merely a test of the legitimacy of interferences in human rights. The proportionality principle is generally used to delimit the substantive content of rights and as Torkel Opsahl has rightly observed in the context of the Universal Declaration: To define a right is in fact at the same time to limit it: It excludes what it does not cover. What is positively described as its contents indicates its limits. However, limitations are expressed in other ways as well, familiar to anyone with some experience of legal texts. Many alternatives exist, explicitly described as limitations, restrictions, exceptions or in terms such as shall, however, not include. The logic is often the same, whatever drafting is adopted.
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