Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 8: The fundamental right to (intellectual) property and the discretion of the legislature
In this chapter, I would like to make two points regarding the fundamental rights dimensions of intellectual property (IP). First, I will explain why the prevailing approach to balancing the fundamental right to intellectual property with conflicting fundamental freedoms as if they were of equal rank is conceptually flawed and should be replaced by a justification paradigm. Second, I want to highlight the pre-eminent role of the legislature and the much more limited role of the judiciary in developing IP law. These arguments are based on an analysis of the jurisprudence of the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU), and last but not least the German Constitutional Court, the Bundesverfassungsgericht, regarding the respective inter-/supra-/national fundamental-rights regimes. Subject to some – albeit significant – renegades like the US Supreme Court, it is now widely accepted in Europe, other jurisdictions like South Africa, and not least in international IP law that fundamental and human-rights law is highly relevant for IP. This discourse is dominated by advocates of a ‘balancing paradigm’. Christophe Geiger argues that tensions between property and freedom have to be brought into a balanced relationship and that this reasoning offers possibilities for a balanced development of IP law generally. According to Daniel Gervais, conflicts between copyright and rights such as the right to privacy or to information imply striking a balance.
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