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 21: Freedom to conduct a business, competition and intellectual property

Gustavo Ghidini and Andrea Stazi

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

Extract

The purpose of this chapter is to explore in systemic and logical terms the relation between the ‘freedom to conduct a business’ and the entitlement and exercise of intellectual property rights (IPRs). As convenient to a reconstruction that, while directed to an international audience, implies the reference to constitutional laws and IP regimes which can vary from one legal order to another, we will attempt to focus on such basic normative tenets that, on both fronts, can be considered as a common ground (thus also a conceptual lingua franca) of market economies and democratic societies. Basic tenets whose foundations were laid by the ‘dual revolution’ that, in Europe as in the US, crowned the Age of the Enlightenment. To conduct a business is the object of a constitutional liberty representing a corollary, if not a synonym, of the right of free economic initiative. It is a ‘fundamental’ right, as per Article 16 of the Charter of Fundamental Rights of the European Union (CFREU), and national constitutions (as for instance in the Constitution of the Italian Republic, Article 41.1). As also defined by the principle of citizens’ ‘equality before the law’ (Article 20 CFREU), the freedom to conduct a business features as the right of citizens to practice, in individual or associated form, the same business of any other citizen/entrepreneur. This is to say that it translates into the right to compete. Freedom of competition is indeed the pluralistic refraction of the principle of free economic initiative.

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