Edited by Christophe Geiger
Chapter 7: The constitutionalization of the European legal order: Impact of human rights on intellectual property in the EU
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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