A Market Friendly Paradigm for IP Rights and Human Rights in Europe

Legal protection of intellectual property remains largely territorial but the global expansion of intellectual property rights in the twentieth century has limited the degree of flexibility and policy space left to States to balance IP rights with public goods. The adoption of the multilateral TRIPS agreement and WTO enforcement system was a high point in international law superseded in turn by bilateral investment treaties which contain IP provisions over and above the minimum standards in TRIPS. Transnational corporations have aggressively relied on these treaties to seek enforcement of their trademarks and patents in investment tribunals and constitutional courts, alleging, inter alia a violation of their ‘human’ right to property. The idea that companies enjoy a ‘human’ right to protection of their intellectual property may seem incongruous but there is no doubt that the European Convention on Human Rights enables ‘legal’ persons to claim as victims of human rights violations. Why did the ECHR drafters think that companies should enjoy a human right to property? This question has received little attention to date. The aim of this chapter is to offer some initial answers by retracing the drafting history of the right to property in the ECHR and analysing its application to intellectual property rights by the European Court of Human Rights. The first part of the chapter situates the emerging questions on the ECHR’s protection of property rights in the context of two contrasting approaches to the global expansion of international law and its use by transnational corporations to protect private, commercial interests. The second part retraces the drafting history of the right to property in the ECHR. It shows the influence of free market, neo-liberal conservative voices in the European Movement which provided the drafting template for the ECHR. By contrast, the analysis of the Travaux Preparatoires reveals that the consensus amongst Parliamentarians and State representatives at the Council of Europe was that property rights were aimed at protecting the basic, personal belongings which are necessary for each human being to lead a life with dignity. The last part offers some initial reflections on the extent to which the European Court of Human Rights (and the now defunct Commission) have assisted companies which have relied on the ECHR to challenge State policies adversely affecting their IP. Three case studies are singled out to illustrate how the Court has used the flexibility built into the text of the Convention to both restrict and expand protection of the IP rights of companies in Europe.