Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 23: Enforcement of intellectual property rights and the right to a fair trial
As evidenced by this collection, the relationship between intellectual property and fundamental rights has attracted considerable scholarly attention. The right to a fair trial has not featured highly in this upsurge of interest. This is because, on the face of it, there would appear to be little inherent relationship between due process rights and intellectual property law and no particular reason why intellectual property proceedings should be any more likely to result in a violation of the right to a fair trial than other forms of legal claim. Indeed, at first sight, such conflicts seem less likely in this context than in others in which personal liberty and reputation are more obviously at stake. Recently, however, the attention of lobbyists, policy-makers, legislators and courts has turned increasingly to the enforcement of intellectual property claims. In such circumstances, the fair trial rights of defendants may assume greater significance. A number of the criticisms of the proposed harmonisation of criminal enforcement measures within the European Union (EU) and of the potential impact of the Anti-Counterfeiting Trade Agreement (ACTA) can be characterised as concerns about due process. New challenges have also been thrown up by the search for suitable methods of enforcing intellectual property rights in an altered technological landscape. Courts and legislators currently wrestle with the need to find mechanisms to protect the interests of users and competitors while, at the same time, seeking to preserve the fundamental principles of intellectual property law in the digital environment.
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