ArticlePDF Available
... Furthermore, in contrast to 'unconditioned' IP rights subsumption under the general guaranty of property, the separate mentioning of IP within the broader constitutional clause on the protection of property would point out the specificity of intellectual property, underlining that it is a property of a special kind, which should not be equated with physical property and which has to be considered as having an even more limited nature than the latter. 188 Finally, an explicit reference to the applicability of the general constitutional clause on property protection to intellectual property avoids any risks of 'absolute' reading of existing constitutional IP provisions, as it would constitute a lex specialis with regard to the general right to property. ...
... One of the main changes affecting the scientific community is related to the limitations and exceptions for the use of elements protected by copyright. The EU has followed a trend of balance between public and private interests for this activity [10,11] and a purpose of harmonization. However, there is an uneven regulation among Member States due to the fact that the InfoSoc Directive established optional exceptions [45]. ...
Full-text available
Article
The increase of visibility and transfer of scholar knowledge through digital environments have been followed by the author's rights abuses such as plagiarism and fraud. For this reason, copyright is increasingly a topic of major importance since it provides authors with a set of rights to enable them to utilize their work and to be recognized as the creators. The new research methods linked to technological advances (such as data mining) and the emergence of systems such as Open Access (OA) are currently under debate. These issues have generated legislative changes at the level of the European Union (EU) and its Member States. For this reason, it is relevant that the researchers know how to protect their work and the proper use of another's work. Consequently, this research aims to identify the limitations of copyright in the EU and as a specific case in Spain, within the framework of scientific research. For this, the changes in the European and Spanish copyright regulations are analyzed. The results confirm new exceptions and limitations for researchers related to technological evolution, such as data mining. Additionally, the article incorporates several guidelines and implications for the scientific community.
... Furthermore, in contrast to 'unconditioned' IP rights subsumption under the general guaranty of property, the separate mentioning of IP within the broader constitutional clause on the protection of property would point out the specificity of intellectual property, underlining that it is a property of a special kind, which should not be equated with physical property and which has to be considered as having an even more limited nature than the latter. 188 Finally, an explicit reference to the applicability of the general constitutional clause on property protection to intellectual property avoids any risks of 'absolute' reading of existing constitutional IP provisions, as it would constitute a lex specialis with regard to the general right to property. ...
Full-text available
Chapter
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.
Full-text available
Article
This study highlights how the fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the planned reform of the E-commerce directive by the forthcoming Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this study addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Part I takes a closer look at the history and theory of intermediary liability online before analysing the limited liability regime foreseen in the E-Commerce Directive and the upcoming future Digital Services Act. The study then reviews in part II pertinent fundamental rights and jurisprudence developed by the ECtHR and the CJEU under the European Convention on Human Rights and the EU Charter. Part III then focusses on the imperatives that fundamental rights bring to the discussion of a reform of the limited intermediary liability regime in the EU. To this end, this study concludes by specifying several major directions that should be explored to achieve a balanced regulatory approach and a fundamental rights-compliant framework for platform liability in the EU.
Article
In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as – most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Art. 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom-of-expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exception. Nevertheless, the Luxembourg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally introduced flexibility (by means of complementing that already existing in the EU list of exceptions) could be harmful to copyright harmonization and legal certainty. Therefore, despite having taken a more favourable position on the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond the exhaustive list of limitations of Art. 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such a position of the CJEU that relies on the fact that the legislature has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.
Full-text available
Chapter
This chapter of the Oxford Handbook of Online Intermediary Liability sets the stage for considering the tension between intermediary liability and fundamental rights with special emphasis on the European legal framework. Competing fundamental rights, such as freedom of expression, privacy, freedom of business and the right to property are entangled into the intermediary liability conundrum. Policy makers are still in search of a balanced and proportional fine tuning of online intermediaries’ regulation that might address the miscellaneous interests of all stakeholders involved, with special emphasis on users’ rights. In this context, the increasing reliance on automated enforcement technologies, which will be the topic of further review in multiple chapters throughout the Handbook, might set in motion dystopian scenarios where users’ fundamental rights are heavily undermined.
Article
Maintaining a fair balance between individuals’ interests and the public interest is arguably believed to be the most effective approach in serving the ultimate objective of copyright: to promote social, economic and cultural development for the benefit of both rightsholders and the public at large. Through this balanced approach, creativity can be maximised and thrive better than by tilting towards one or the other. In copyright law, such balance is reflected by the way in which the short-term grant of exclusive rights respects the long-term public interest represented by limitations and exceptions to copyright. Despite an unclear and non-uniform definition and scope, the importance of the public interest has been implicitly and explicitly recognised through disparate forms of safeguards in different jurisdictions. However, the last few decades have seen a rapid development of information technologies which, in turn, has contributed to an unparalleled legislative drive at international level towards overprotecting the interests of rightsholders. This has then left the public interest under-protected and now constitutes an imbalance of copyright. This thesis therefore examines legislative intervention into the international copyright regime in an attempt to ensure that the public interest is uniformly and mandatorily safeguarded at international level. In particular, it strives to establish an overarching public interest defence capable of protecting certain aspects of public values embedded in copyright works. In achieving this, the thesis examines the scope of the defence, what it should entail, and what aspects are to be taken into account in the course of formulating and giving effect to the defence. The substantive chapters investigate the public policy grounds, the right to freedom of expression and the international three-step test, i.e. the roles they play in shaping the latitude and operations of the defence, respectively. Finally, the thesis also evaluates different ways in which the defence can be incorporated into the international copyright regime in order to effectively counterbalance the rightsholder-centric tendency and restore the balance of copyright.
Full-text available
Article
Human Rights Quarterly 21.1 (1999) 156-178 Given the ever-widening acceptance of a right to protection of intellectual property (IP), one might assume that there is at least implicitly an equally broad and agreed upon rationale or justification for this right. This, however, is not the case. Among those who write on the subject, there are two dominant, and not at all consistent, lines of reasoning. John Locke's labor theory of property, one of the foundations of traditional property rights in the modern world, is a logical starting point for attempts to justify intellectual property rights (IPR), that is, the protection of exclusive ownership in intangible objects that acquire their value mainly from creative efforts. The second justification for IPR is derived from a traditional doctrine of utilitarian inference, whereby the right to property is granted based on maximizing the benefits society can obtain. Although there are zones of overlap between these two lines of reasoning, even if they are taken together and their zones of disagreement ignored, they do not constitute an adequate or coherent prescriptive theory for the recognition of IP rights. Without a logical foundation for justifying IPR, their consideration as a basic human right seems untenable. Thus, this article presents an alternative argument for the justification of IPR and its manifestation as a human right. Although it is clear that the most frequently offered justifications for a right to IP are anchored in relatively modern theoretical arguments, there are substantially older historical precedents for this policy. Intellectual property issues date to the Chinese Zhou dynasty (1122 BC), when concern arose for commodity identification. By AD 835, the Wenzong Emperor barred the unauthorized reproduction of documents, calendars, and other items related to prognostication. In the Western world, IPR in the form of patents came into existence around 1500 in Venice and spread to most of the major European powers by 1550, more than a century before John Locke's work on private property. Gradually, governments recognized rights that owners had to their ideas. Subsequently, states adapted IPR to accommodate the increasingly expansive growth of technological innovations. In the modern era, the claim to IPR has evolved from a state-granted right to a universal human right without substantial scrutiny. This article proposes an alternative view of IPR protection: that not all IPR should be justified. Because the state's responsibility to provide for people's physical welfare takes precedence over an individual's right to profit, the article makes two explicit arguments. The first is that there exists a hierarchy of intellectual objects based on a generally perceived notion of physical welfare. The second is that when discussing IPR, the emphasis must not be exclusively on the rights of producers; IPR must also be examined from the perspective of consumers and the national welfare. Both of these arguments focus on nations' attempts to fulfill their citizens' basic needs, which are largely grounded in technologies and processes that sustain physical well-being. Consequently, if certain individuals have exclusive control of established technologies, other individuals may be deprived of basic products that could contribute to their betterment. Before elaborating on the arguments outlined above, this article explores the differences between traditional property and IP, as well as the two traditional theories used to justify IP rights. The article also considers the role that IP plays in contributing to people's welfare, and concludes with an examination of the conflict that exists between developed countries that favor strong universal IPR protection, and the developing countries that favor greater access to technologies for all nations based on human rights considerations. Property, in one form or another, has been a concern in many of history's struggles for fundamental rights. The Magna Carta (1215), the US Declaration of Independence (1776), the French Declaration of the Rights of Man and Citizen (1789), and the Universal Declaration of Human Rights (1948) all recognize property rights in some form. Generally, this right to property refers to tangible items, such as land, business establishments, housing, and other resources. Yet there is another form of property, consisting of intangible items such as intellectual objects. The...
Full-text available
Article
While, in principle, copyright permits the author to profit from his works and to live from his art, it can also prevent him from creating if it is applied too broadly or without differentiation. Copyright and the freedom of artistic creation are thus in a fragile balance that is regularly endangered by a certain tendency towards extending the scope of copyright protection beyond its natural borders. In an important ruling, the French Supreme Court dismissed the claims by Victor Hugo's heirs, who had argued that the publication of a sequel to the work "Les Miserables" was an infringement of the author's moral rights although the work had already become part of the public domain.1 Citing Art. 10 of the European Convention on Human Rights, the Court gave priority to the freedom of creation and laid down the manner of achieving a balance in the conflict that might arise with copyright, whether before or after expiry of the monopoly. This ruling constitutes the point of departure for this article.
Full-text available
Article
It has now become common practice for a number of corporate trade mark holders to try to use their intellectual property rights to prevent criticism of their company's products or policies by certain organisations. While these companies have prevailed in a number of cases, the courts are increasingly relying on freedom of expression as a ground for permitting the use of trade marks for purposes of parody or criticism. Nevertheless, freedom of expression is not a justification for simply every kind of use, and excesses can be punished under civil law. What form does this abuse take? A very interesting ruling by the French Supreme Court dated 19 October 2006 permits a better definition of the limits of the freedom of expression when it is in conflict with trade mark rights(1).