Article

Discovery and Compulsion: How Regulatory and Litigation Issues relating to Intellectual Property Rights are Challenging the Fundamental Right to the Protection of Personal Data

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Abstract

Developing case law in relation to Norwich Pharmacal discovery litigation – coupled with the Supreme Court’s Phillips v Mulcaire decision about compelled interviews - shows a clear and distinctive trend towards protecting a broad range of intellectual property rights that may be damaged or infringed by unauthorised downloading or hacking. Statutory provisions in the Digital Economy Act 2010 reinforce the protection being given to copyright owners.However issues in relation to an individual’s personal data, clearly protected as an expressed stand-alone right the Article 8 of the EU’s Charter of Fundamental Rights, are only rarely being identified, articulated, weighed and given a separate identity in the proportionality balance conducted in the overt judicial reasoning that emerges from such litigation.When the Charter Article 8 personal data protection issues are actually identified in these intellectual property discovery situations then they are being analysed only by reference to EHCR Article 8 privacy principles which, it will be argued, ignores and detracts from a proper analysis and development of the essence of personal data enshrined in the EU’s Charter.

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... 131 They mainly concern the conflict between an intellectual property right (especially copyright, but also trademark rights) 132 and freedom of expression or the public's right to information. 133 However, there is also a growing number of decisions on the intersection of IP rights with the right to privacy and data protection, 134 freedom to conduct a business, 135 a balance of the concerned interests and fundamental rights positions with consideration of the principle of proportionality. 143 The second step would serve as a corrective, in order to prevent heavy losses for the right-holder. ...
... 131 They mainly concern the conflict between an intellectual property right (especially copyright, but also trademark rights) 132 and freedom of expression or the public's right to information. 133 However, there is also a growing number of decisions on the intersection of IP rights with the right to privacy and data protection, 134 freedom to conduct a business, 135 a balance of the concerned interests and fundamental rights positions with consideration of the principle of proportionality. 143 The second step would serve as a corrective, in order to prevent heavy losses for the right-holder. ...
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This paper is an updated version of the chapter entitled “Reconceptualizing the Constitutional Dimension of Intellectual Property” which appeared in the previous edition (3rd) of the volume edited by Paul Torremans entitled “Intellectual Property and Human Rights”. It draws on previous research published by the author on the ongoing “constitutionalization” of intellectual property rights through the increasing use by legislators and courts of human rights to shape the contours of the exclusive rights. The paper incorporates the most recent judicial developments at EU level which confirmed the full validity and legitimacy of the use of fundamental rights to interpret and adapt IP laws. Drawing on these developments, it advances several proposals in order to construct a satisfying and balanced clause for IP at constitutional level, demonstrating thus a closer connection to the interests of society. First, the chapter proposes to link IP with the universally recognized right to culture and science, thereby mirroring a solution adopted at international and national levels in several countries. Second, it explores the protection that could be offered by the constitutional right to freedom of expression and information. Finally, the inclusion of IP within the protection of property at the constitutional level is analyzed. It is demonstrated that the link with the property provision often guarantees that the social function of this right is extended to intellectual property. When combined with the proportionality principle that mandates a fair balance between competing fundamental rights, intellectual property is far from absolute and can on the contrary be limited by the interest of the society at large.
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The entry into force of the EU Charter of Fundamental Rights and the ensuing introduction of the right to data protection as a new fundamental right in the legal order of the EU has raised some challenges. This article is an attempt to bring clarity on some of these questions. We will therefore try to address the issue of the place of the right to the protection of personal data within the global architecture of the Charter, but also the relationship between this new fundamental right and the already existing instruments. In doing so, we will analyse the most pertinent case law of the Court of Luxembourg, only to find out that it creates more confusion than clarity. The lesson we draw from this overview is that the reasoning of the Court is permeated by a ‘privacy thinking’, which consists not only in overly linking the rights to privacy and data protection, but also in applying the modus operandi of the former to the latter (which are different we contend). The same flawed reasoning seems to be at work in the EU Charter of Fundamental Rights. Therefore, it is crucial that the different modi operandi be acknowledged, and that any upcoming data protection instrument is accurately framed in relation with Article 8 of the Charter.
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