scholarly journals Global Intellectual Property Protection and New Constitutionalism

2021 ◽  
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Fundamental Rights ◽  
Constitutional Theory ◽  
Property Law ◽  
Intellectual Property Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Legal Constraints ◽  
International Experts

The constitutionalisation of intellectual property law is often framed as a benign and progressive integration of intellectual property with fundamental rights. Yet this is not a full or even an adequate picture of the ongoing constitutionalisation processes affecting IP. This collection of essays, written by international experts and covering a range of different areas of intellectual property law, takes a broader approach to the process. Drawing on constitutional theory, and particularly on ideas of ‘new constitutionalism’, the chapters engage with the complex array of contemporary legal constraints on intellectual property law-making. Such constraints arising in international intellectual property law, human rights law (including human rights protection for right-holders), investment treaties, and forms of private ordering.

From Market Access to Cumulative Innovation

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Market Access ◽  
Step Test ◽  
Property Law ◽  
Intellectual Property Law ◽  
Rights Protection ◽  
Intellectual Property Rights Protection ◽  
Property Rights Protection ◽  
Production Output

This chapter argues for a reinvigorated role of the market access doctrine and references a number of important antitrust and intellectual property law decisions in which courts have given priority to market access. It finds a novel function for market access to play within antitrust and intellectual property law liability: courts that grant plaintiffs access to a defendant’s production output should refer to a three-step test under which they inquire (1) whether the inventor, through first-mover advantages, has reaped a sufficient reward such that contractual or intellectual property rights protection would no longer be required to facilitate innovation, (2) whether competitors were able to challenge the proprietary platform’s position in the market without the possibility of granting access, and (3) whether competitors seeking to benefit from market access will make use of it to facilitate the introduction of new goods rather than merely to copy the initial invention.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part I

2013 ◽  
Vol 15 (3) ◽  
pp. 319-339 ◽  
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Property Law ◽  
Cultural Expression ◽  
Intellectual Property Law ◽  
Traditional Cultural Expressions

Abstract This article is the first part of a two-part piece, which considers the intellectual property rights of indigenous peoples. After establishing pragmatic working definitions of who “indigenous peoples” are and what folklore (or “traditional cultural expression”) is, as compared with, but dialectically related to, “traditional knowledge,” this article does the following: 1) explains why western assumptions built into intellectual property law make this area of law a problematic tool for protecting traditional knowledge (TK) and expressions of folklore (EoF) or traditional cultural expressions (TCE) of indigenous peoples; and 2) creates a general sketch of human rights related legal instruments that could be and have been harnessed, with varying degrees of success, in the protection of the intellectual property of indigenous peoples.

The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy?

2009 ◽  
Vol 11 ◽  
pp. 53-85 ◽  
Author(s):  
Sionaidh Douglas-Scott
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Identity ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Arrest Warrant ◽  
Legal Accountability ◽  
To Come ◽  
Free Movement Of Persons ◽  
The Eu

AbstractThe EU’s ‘Area of Freedom, Security and Justice’ is a hugely important area covering criminal law, terrorism, immigration, visa control and civil justice, as well as the massive area of free movement of persons. What is clear, however, is that measures which fall within its scope have the capacity to alienate EU citizens rather than making them feel aware of their European identity in a positive sense. This chapter examines some of the measures taken by the EU in this broad field which cause particular concern, namely a lack of democratic and legal accountability as well as inadequate regard to human rights. It focuses in particular on two areas in which human rights protection in the EU has been undermined. The first is in the field of data protection. The second is in the field of suspects’ rights, particularly in the context of the European arrest warrant. The chapter concludes by considering why so many restrictions on freedom have been allowed to come about and suggests some possible solutions.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

Arguing for Human Rights

2012 ◽  
Author(s):  
Mathias Risse
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Law ◽  
Private Ownership ◽  
Human Right ◽  
General Argument ◽  
Intellectual Property Law ◽  
Hugo Grotius ◽  
The Relationship

This chapter examines whether there is a human right to essential pharmaceuticals. It first considers the notion of an Intellectual Common by engaging with Hugo Grotius, and particularly whether his argument against private ownership of the seas can be applied to ideas. Freedom of the seas is no longer called for on Grotius's own terms. However, his reasoning in support of freedom of the seas bears not only on the atmosphere but also on a different domain, the domain of ideas. How people can exploit ideas economically is regulated by intellectual property law, which includes patents, copyrights, and trademarks. The chapter presents a general argument against the legitimacy of private intellectual property beyond compensation and incentive setting wherever intellectual property is regulated. It concludes by making the case for the relationship between human rights and vital medicines.

Can Trade Liberalization Enhance Freedom of Expression? A WTO Perspective on Censorship

2012 ◽  
pp. 461-474
Author(s):  
Angelica Bonfanti
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Trade Liberalization ◽  
Intellectual Property Rights ◽  
Freedom Of Expression ◽  
The Other ◽  
Human Rights Protection ◽  
The Public ◽  
Rights Protection ◽  
The One

Pursuant to their WTO commitments, Member States shall liberalize trade in goods, services and intellectual property rights, without any exceptions apart from those expressly provided by the covered agreements. Among them is the public morals exception. This paper aims to assess whether the implementation of the WTO commitments may have the effect of removing the filters imposed by some States through censorship, and whether the liberalization of international trade may contextually function as a means for enhancing freedom of expression. In so doing the paper examines how the public morals exception should be interpreted when censorship measures, on the one hand, and human rights protection, on the other, are at stake.

II. Human Rights

2001 ◽  
Vol 50 (3) ◽  
pp. 690-701 ◽  
Author(s):  
Joe McMahon ◽  
Lammy Betten
Keyword(s):  
Human Rights ◽  
European Parliament ◽  
Fundamental Rights ◽  
Political Leaders ◽  
Human Rights Protection ◽  
Rights Protection

At the Nice Summit in December 2000, Europe's political leaders adopted the much-discussed EU Charter on Fundamental Rights in the form of a legally non-binding political declaration. It is the second such instrument in relation to human rights protection.1 The Presidency Conclusions to both the 1999 Cologne and Tampere Summits ordered the preparation of a draft Charter which was to be solemnly proclaimed by the European Parliament, the Commission and Council at the Nice Summit.2 It was only after that fact that “It will … have to be considered whether and, if so, how the Charter should be integrated into the treaties.”3

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