Table of Contents

Research Handbook on Human Rights and Intellectual Property

Research Handbook on Human Rights and Intellectual Property

Research Handbooks in Intellectual Property series

Edited by Christophe Geiger

Research Handbook on Human Rights and Intellectual Property is a comprehensive reference work on the intersection of human rights and intellectual property law. Resulting from a field-specific expertise of over 40 scholars and professionals of world renown, the book explores the practical and doctrinal implications of human rights on intellectual property law and jurisprudence. In particular, the chapters scrutinize issues related to interactions among and between norms of different legal families, the role of human rights in development of the balanced intellectual property legal framework, standing case-law of national and regional courts and intellectual property offices reconciling overlapping rights and obligations, and identify the practical significance of different human rights for the exercise of intellectual property rights.

Chapter 14: Human rights and intellectual property in the United States: The role of United States courts in striking a fine balance between competing policies

Toshiko Takenaka and Linda Falcon

Subjects: law - academic, human rights, intellectual property law


The United States Patent and Copyright Acts have their roots in the same foundational document that grants the American people their fundamental rights, the United States Constitution (Constitution). These rights, both explicit and implicit, shape legislation, and the United States Congress (Congress) is assumed to account for such rights when enacting any legislation, including laws governing intellectual property. Accordingly, copyright law has mechanisms to accommodate such rights, particularly freedom of expression. Such mechanisms include the exclusion of ideas from copyright eligibility and the fair use defense, which allow the public to use ideas and facts without a risk of copyright violation. In parallel to the Copyright Act, the Patent Act should accommodate constitutional rights in excluding subject matter and limiting patent protection. The Copyright and Patent Clause of the Constitution gives Congress the power to develop patent and copyright law systems and, further, defines the goal of the systems as promoting the progress of science and the useful arts. To accomplish this objective, the clause authorizes a grant of exclusive rights to authors and inventors over their works for a limited time. The Constitution additionally provides for various civil rights accorded to the American people. Among these rights, the First Amendment’s protection of freedom of speech and expression is one of the most fundamental and revered. However, the exclusionary nature of copyrights may interfere with this fundamental right.

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