Research Handbook on Human Rights and Intellectual Property
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Research Handbook on Human Rights and Intellectual Property

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.
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Chapter 7: The constitutionalization of the European legal order: Impact of human rights on intellectual property in the EU

Tuomas Mylly


No doubt, fundamental rights now occupy a greater role than before in the argumentation of the Court of Justice of the European Union (henceforth the CJEU). This conclusion applies generally and in the particular instance of intellectual property (henceforth IP) litigation. Yet whether this development should in the IP contexts be applauded or critiqued – or perhaps both – is less evident. On one hand, the application of fundamental rights to IP might according to a pioneering European commentator lead to the recovery of the ‘true function’ of IP rights. Fundamental rights could be used to balance IP with broader values and to curb many of its proprietary excesses. The leading international volume on human rights and IP sees their intersection as unavoidable, and recommends grounding the arguments of consumers, future creators, and the public in human rights language, as such arguments would be conceptually equivalent to those of IP proprietors. Moreover, such a move would reshape normative agendas and negotiation strategies by directing IP advocates to work within international human rights venues. On the other hand, there are more skeptical voices, too. A renowned European scholar on the topic has expressed doubts whether the CJEU’s increased references to fundamental rights in IP cases have always been driven by the desire to protect basic rights in the EU. Instead, at least sometimes the CJEU could have referred to them strategically to facilitate its attempts to harmonize otherwise fragmented and still partial EU copyright law.

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