Edited by Christophe Geiger
Chapter 5: Overlaps and conflict norms in human rights law: Approaches of European courts to address intersections with intellectual property rights
The relationship between the protection of intellectual property (IP) and human rights has been examined in a growing number of publications. Most focus on the substantive law overlaps, interfaces, tensions and maybe even conflicts between the two areas of law – be it on the national, regional (e.g. European) or international plane. This chapter does not purport to advance this debate on substantive intersections – such as access to medicines under the right to health versus patent protection for pharmaceutical products; or access and use of farm-saved seeds under the right to food and plant variety protection and patent rights over biological material. Instead, it focuses on the legal mechanisms and approaches to address some of these intersections between the two systems. In that way, it builds on the discourses concerning fragmentation, regime interaction and global legal pluralism that offer different narratives on how specific areas of international law view, define and delineate their relations to another in the context continuously increasing body of rules on the international plane. Within this context, the chapter focuses on the direct and indirect conflict avoidance and resolution approaches adopted by the two main European Courts which have been increasingly asked to deal with cases where IP protection and human rights are intersecting.
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