Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 21: Freedom to conduct a business, competition and intellectual property
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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