Resolving conflicts between interests protected by intellectual property through a human rights framework

Abstract

Recently, intellectual property has been facing what is often perceived as a ‘legitimacy crisis’. The core of the issue is that intellectual property law increasingly protects the economic interests of rightholders to the detriment of those interests which pertain to authors, inventors and creators in general, and to society at large. Considering that intellectual property rights are often held by large legal entities like publishers, record labels, collecting societies, and, in general, multinational IP-producing or managing companies, then, it is self-evident that such rightholders enjoy a stronger bargaining power, also having more resource to engage in litigation proceedings, than private individuals or groups of individuals. Given that excessive protection is most often enjoyed by legal entities, it is also evident, prima facie, that human rights law can be used to restore the balance by granting rights to individuals to the exclusion of rightholders which are legal entities. The paper, therefore, explores the intersection between human rights and intellectual property law in an attempt to find a solution to the imbalanced protection that the current intellectual property regime affords to righholders of intellectual property rights. To this aim, the provisions of human rights instruments which relate to intellectual property are analysed – namely those of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. On the basis of this analysis the paper concludes that the existing human rights framework does not adequately protect the different interests in a balanced manner. A hypothetical provision is thus proposed, which in a given human rights instrument addresses the shortcomings of the existing framework and offers a solution to the intellectual property problem.