For many human rights lawyers, intellectual property (IP) law has probably not always featured high on the list of areas in which human rights are expected to play a significant role. This is not to suggest that the relationship between IP and human rights is new: questions concerning, for example, access to health, scientific progress and the protection of authors’ interests have long generated important human rights debates. Yet copyright, patents and trade marks tend to be associated primarily with innovation, creativity and commercial interests, while their implications for such rights as freedom of expression, privacy or fair trial guarantees have received less systematic attention. A closer look at the jurisprudence of the European courts suggests, however, that human rights now permeate the interpretation and enforcement of IP law to an extent that challenges any clear-cut separation between the two fields.
Over the past two decades, both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have been called upon with growing frequency to resolve disputes lying at the intersection of IP and fundamental rights. What initially appeared to be an occasional overlap has gradually developed into a distinct body of jurisprudence. Human rights arguments are no longer confined to exceptional cases. They increasingly shape the interpretation, enforcement and even the very structure of IP law.
At first sight, this development may seem somewhat paradoxical. Human rights have often been invoked as a means of limiting excessive IP protection – for example, where copyright interferes with freedom of expression (see, e.g., here, here, here, here, here, here, here and here) or where enforcement measures threaten privacy (here and here). However, the European picture is considerably more complex. IP itself has become part of the constitutional landscape and reflects ethical and societal choices that lie at the core of the human rights framework.
The ECtHR has progressively recognised copyright, patents, trade marks, designs and other IP rights as “possessions” protected under Article 1 of Protocol No. 1 to the European Convention on Human Rights. The EU Charter goes a step further by providing expressly in Article 17(2) that IP shall be protected. As a result, European courts are increasingly called upon to reconcile competing fundamental rights rather than simply balancing economic interests against human rights.
This European approach is not self-evident. International human rights law has generally adopted a more cautious position. Most notably, the UN Committee on Economic, Social and Cultural Rights has drawn a clear distinction between the human right of authors to benefit from the protection of their moral and material interests and IP rights as legal instruments established by States. From that perspective, the European constitutionalisation of intellectual property appears unusually far-reaching.
Looking across the case law also reveals that freedom of expression, although undoubtedly the best-known point of contact between intellectual property and human rights, is only part of the picture.
Privacy and personal data protection have become central to IP litigation in the digital environment. A long line of CJEU cases, from Promusicae to La Quadrature du Net, has grappled with the conditions under which internet access providers and online platforms may be required to disclose the identities of suspected infringers or retain users’ data for copyright enforcement purposes, seeking to strike a fair balance between effective IP protection and individuals’ privacy rights. Freedom to conduct a business has similarly become an important consideration in disputes concerning injunctions imposed on online intermediaries, with the CJEU holding in Scarlet Extended and SABAM v. Netlog that copyright enforcement cannot require providers to install general monitoring or filtering systems that impose disproportionate burdens on their business activities. Procedural rights have likewise moved to the foreground. Questions ranging from access to a court and judicial independence to the rights of the defence, the right to an effective remedy and even the right to good administration increasingly shape the way IP disputes are adjudicated, ensuring that the protection of IP rights remains consistent with broader constitutional guarantees. Even the principles of non-discrimination and equal treatment have become relevant to IP law. In Deckmyn, the CJEU recognised that a copyright holder may oppose reliance on the parody exception where the parody conveys a discriminatory message that the author could reasonably be perceived as endorsing. In trade mark law, PAKI illustrates the opposite side of the coin: the General Court relied on the principle of non-discrimination in Article 21 of the Charter to uphold the refusal to register a racially offensive trade mark, treating the fight against discrimination as a guiding principle in the interpretation of EU trade mark law.
At the same time, the jurisprudence reveals important differences between Luxembourg and Strasbourg. Although the two courts frequently reach similar outcomes, they tend to reason differently. The ECtHR approaches IP disputes through the familiar framework of interference with Convention rights and justification under the Convention. The CJEU, by contrast, seeks to accommodate competing fundamental rights within the interpretation of EU IP legislation itself, emphasising the need to achieve a “fair balance” between rights protected by the Charter. This contrast is particularly visible in relation to freedom of expression. Strasbourg has treated freedom of expression as an external limitation on IP protection (Ashby Donald; “The Pirate Bay”), whereas Luxembourg has generally accommodated it through the interpretation of IP law itself, including copyright exceptions and limitations (Funke Medien and Spiegel Online on quotation and reporting of current events; Pelham I and II on quotation and pastiche; Deckmyn on parody) and, most recently, the concept of “due cause” in trade mark law (IKEA). Similar patterns can be observed in relation to privacy, where Strasbourg has subjected copyright-enforcement searches and seizures to separate Article 8 scrutiny (Chappell, Prezhdarovi, Zosymov), while Luxembourg has accommodated privacy and data protection through the interpretation of EU rules governing IP enforcement and access to identifying information (Promusicae, Coty Germany, Bastei Lübbe); procedural rights, where Strasbourg has reviewed IP enforcement externally under the Convention (Zosymov), while the CJEU has allowed the right to an effective remedy to shape the scope and enforcement of IP rights themselves (BY (Preuve photographique), Coty Germany, Bastei Lübbe); and economic freedoms, where the freedom to conduct a business has shaped the permissible scope of copyright-enforcement obligations imposed on intermediaries (Scarlet Extended, SABAM v. Netlog, UPC Telekabel, Mc Fadden). Property presents a somewhat less symmetrical picture, although Strasbourg has similarly subjected IP-enforcement measures affecting third parties’ possessions to separate review under Article 1 of Protocol No. 1 (Zosymov, Pendov, Łysak).
The catalogue of relevant fundamental rights also appears unlikely to remain static. While freedom of expression, property, privacy and fair trial rights are now firmly established in IP adjudication, other rights are only beginning to emerge. Consider the dispute in Pelham, where a two-second sound sample taken from a Kraftwerk recording eventually prompted the CJEU to recognise the freedom of the arts under Article 13 of the Charter as a relevant constitutional consideration. In Pelham II, that recognition became even more concrete, with the Court requiring national courts to examine whether the new work enters into a genuine “artistic dialogue” with the original. A rather different example is Renckhoff, which concerned a school pupil’s use of a freely accessible photograph in a class presentation. Although the Court ultimately sided with the photographer, the case nevertheless brought the right to education into the constitutional conversation surrounding copyright. Looking ahead, environmental protection may become the next frontier. As repair, reuse and upcycling become central to the EU’s circular economy agenda, courts may increasingly be asked whether copyright rules should be interpreted in light of Article 37 of the Charter so as not to prevent artists, designers and consumers from giving existing products and materials a second life.
Viewed as a whole, the European case law demonstrates that IP can no longer be regarded as a self-contained field of economic regulation. Nor do human rights simply operate as external constraints imposed upon it. Increasingly, the two bodies of law develop together, with human rights shaping IP doctrine and IP disputes, in turn, contributing to the development of European constitutional reasoning.
These broader developments are examined in greater detail in our recent book Human Rights and Intellectual Property Before the European Courts, which analyses several decades of ECtHR and CJEU case law across the full spectrum of IP and human rights.
Bio
Elena Izyumenko is Assistant Professor in Intellectual Property Law at the Institute for Information Law (IViR), University of Amsterdam.
Christophe Geiger is Professor of Law and Director of the Innovation Law and Ethics Observatory (ILEO) at Luiss Guido Carli University, Rome.