Implementing Intellectual Property Provisions in Human Rights Instruments: Towards a New Social Contract for the Protection of Intangibles

Abstract

Despite the crucial importance of ensuring a just balance of interests within intellectual property law, a well ‘thought-out’ IP clause is still lacking in an overwhelming majority of human rights instruments. Building upon the results of an empirical study of about 200 national constitutions and several leading international and European treaties on human rights, this chapter examines how the constitutional framework is guiding the understanding and shape of IP law. In particular, it examines different model provisions for IP included in human rights instruments and puts them in the context of selected judicial practice, general principles of legal interpretation and ‘quasi-constitutional’ rules of IP protection. Several solutions are ultimately advanced which could be envisaged in the future to construct a satisfying and balanced clause for IP at the constitutional level, capable of demonstrating by its ‘mere’ wording that intellectual property is intrinsically linked to the interests of society.

Keywords: Intellectual property, human rights, international and European law, constitutional law, right to property, freedom of expression, freedom of art and science, social function of law