Co-authored by Peter Oliver*
Unusually, the Charter of Fundamental Rights of the EU contains a provision (Art. 17(2)) expressly recognizing the right to the protection of intellectual property. With the notable exception of Luksan, the ECJ case law on this provision relates to cases in which the right to IP is pitted against other Charter rights. The Court has been driven to seek a "fair balance" between the rights at stake, an exercise which can only be carried out on a case-by-case basis, thus engendering considerable legal uncertainty. What is more, in several cases the Court has given more limited guidance than it might have done; the recent ruling in McFadden is encouraging, however. But the Court by no means bears sole responsibility for this legal uncertainty: courts are ill equipped to solve such complex policy issues; and, had it not been for the numerous gaps and ambiguities in the relevant EU legislation, the Court would not have had to step in so frequently.
Recent years have seen a raft of landmark judgments on intellectual property ("IP") decided by the Court of Justice, in which the Charter of Fundamental Rights of the EU1 has been raised.2 The occasion is therefore ripe to explore the Court's approach to IP as a fundamental right, and in particular to consider whether that approach diverges from its position regarding other forms of property.
The benefits of IP cannot be seriously contested.3 In a recent Communication, the Commission has written: "Intellectual property-intensive sectors account for 39% of GDP and for 35% of jobs in the EU...A recent study by the Office for Harmonisation in the Internal Market (OHIM) has shown that only 9%of SMEs in Europe own IP rights, but that - on average - those SMEs that do own such rights generate 32% more revenue per employee than those that do not."4 On the other hand, there is a school of thought which advocates paring back the scope of IP, especially when it comes to copyright.5 One leading exponent of this view is Harvard Professor Lawrence Lessig.6 In Europe, this movement has led to the establishment of Pirate Parties, which have enjoyed some success in Germany and Sweden and led to the election of one Member of the European Parliament.7 This is part of a much broader debate about how far-reaching fundamental rights of an economic nature are or should be.
At all events, as we shall see, under the ECHR and in EU law, there is no room for the claim made by the United Nation's Special Rapporteur on Cultural Rights that "intellectual property rights are not human rights":8 the...