Difficulties of Differentiating between Intellectual Property Rights and Human Rights on the Basis of the Case-Law Research Report ‘Internet: Case-Law of the European Court of Human Rights’
Abstract
The article analyzes the problem of non-obvious difference between Human Rights and Intellectual Property Rights which often hinders their proper enforcement and protection. Methodological tools for the study are represented by a set of interrelated methods, techniques and methodologies. Elaboration depth of the posed scientific problem is provided, in particular, by such method of cognition as diachronic and synchronic comparison. The main idea of this article states that it is necessary to identify the demarcation line to distinguish between the abovementioned rights, which would enable proper implementation and protection of the rights of the parties concerned. Considering their high economic value and relation to the property issues, Intellectual Property Rights (as a part of economic rights) can be classified as ‘Property’, according to Art. 1 of Protocol No. 1 to the Convention on Human Rights and Fundamental Freedoms. However, moral rights, dealing with the realization of the creative potential and the personality of the Intellectual Property creator, are not recognized as ‘Property’ and are not protected by Art. 1 of Protocol No. 1 to the Convention on Human Rights and Fundamental Freedoms. In some cases, they can obtain protection under other provisions of the Convention (e.g. Article 10).References
[2] Akdaş v. Turkey, 16.02.2010, No. 41056/04.
[3] Benedek, W., and Kettemann, M. C. 2012. Freedom of Expression and the Internet. Strasbourg: Council of Europe. ISBN 978-92-871-7702-5.
[4] Civil Code of the Russian Federation. http://www.wipo.int/wipolex/ru/details.jsp?id=15809) (accessed 09/08/2016).
[5] Code de la propriété intellectuelle. http://www.wipo.int/wipolex/en/details.jsp?id=16057 (accessed 09/08/2016).
[6] Commentary of the Charter of Fundamental Rights of the European Union. 2006, 163-169. http://ec.europa.eu/justice/fundamental-rights/files/networkcommentaryfinal_en.pdf (accessed 09/08/2016).
[7] Convention Establishing the World Intellectual Property Organization. http://www.wipo.int/wipolex/ru/treaties/text.jsp?file_id=283854 (accessed 09/08/2016).
[8] Editions Plon v. France, 18.05.2004, No. 58148/00.
[9] Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, 23.02.1995, No. 15375/89.
[10] Geiger, C. 2006. ‘Constitutionalising’ Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union. International Review of Intellectual Property and Competition Law, 37(4): 371-406.
[11] Internet: Case-law of the European Court of Human Rights. http://www.echr.coe.int/Documents/Research_report_internet_ENG.pdf (accessed 09/08/2016).
[12] Helfer, L. R., and Graeme W. A. 2011. Human Rights and Intellectual Property: Mapping the Global Interface. Cambridge University Press. ISBN: 9780521711258.
[13] Hugenholtz, P. Bernt, and Okediji, R. L. 2008. Conceiving an International Instrument on Limitations and Exceptions to Copyright: Final Report. The Open Society Institute.
[14] K.U. v. Finland, 02.12.2008, No. 2872/02.
[15] Lipszyc, D. 1999. Droit d'auteur et droits voisins. UNESCO, Paris.
[16] Megadat.com SRL v. Moldova, 08.04.2008, No. 21151/04.
[17] Mincke, W. 1997. Property: assets or power? Objects or relations as substrata of property rights. Property Problems: from Genes to Pension Funds. Ed. by J.W. Harris. Kluwer Law International, 78-80.
[18] Paeffgen GMBH v. Germany, 18.09.2007, No. 25379/04, 21688/05, 21722/05 and 21770/5.
[19] Peck v. the United Kingdom, 28.01.2003, No. 44647/98.
[20] Raustiala, K. 2007. Density and Conflict in International Intellectual Property Law. UC Davis Law Review, 40: 1021-1032.
[21] Rozhkova, M. 2016. ‘Triad’ of intellectual property rights: is the legislative approach correct? The Journal of the IP Court ,11: 14-18. Available at: http://ipcmagazine.ru/legal-issues/triad-of-intellectual-property-rights-if-the-legislative-approach-is-correct (accessed 09/08/2016).
[22] Rozhkova, M., and Afanasiev, D. 2015. The matters of intellectual property in the practice of the European Court of Human Rights. Mediterranean Journal of Social Sciences, 6(3): 241-248.
[23] SC Editura Orizonturi SRL v. Romania, 13.05.2008, No. 15872/03.
[24] Shaver, L, and Sganga, C. 2009. The Right to Take Part in Cultural Life: On Copyright and Human Rights. Wisconsin International Law Journal, 27: 637-662.
[25] Smith Kline and French Laboratories Ltd. v. the Netherlands, 04.10.1990, No. 12633/87.
[26] Strowel, A., and Tulkens, F. 2005. Freedom of expression and copyright under civil law: of balance, adaptation, and access. In: Griffiths, J., and Suthersanen, U. (Eds.). Copyright and Free Speech, Comparative and International Analyses, 287-313.
[27] Torremans, P. L. C. (Ed.) 2004. Copyright and Human Rights: Freedom of Expression – Intellectual Property – Privacy, 1.
[28] Yu, P. K. 2007. Reconceptualizing Intellectual Property Interests in a Human Rights Framework. UC Davis Law Review, 40: 1039-1149.
[29] The Universal Declaration of Human Rights (UDHR). http://www.ohchr.org/EN/UDHR/Pages/UDHRIndex.aspx (accessed 09/08/2016).
[30] WIPO Intellectual Property Handbook: Policy, Law and Use. WIPO, 2004, reprinted 2008. http://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pub_489.pdf (accessed 09/08/2016).
Keywords
The Copyright Transfer Form to ASERS Publishing (The Publisher)
This form refers to the manuscript, which an author(s) was accepted for publication and was signed by all the authors.
The undersigned Author(s) of the above-mentioned Paper here transfer any and all copyright-rights in and to The Paper to The Publisher. The Author(s) warrants that The Paper is based on their original work and that the undersigned has the power and authority to make and execute this assignment. It is the author's responsibility to obtain written permission to quote material that has been previously published in any form. The Publisher recognizes the retained rights noted below and grants to the above authors and employers for whom the work performed royalty-free permission to reuse their materials below. Authors may reuse all or portions of the above Paper in other works, excepting the publication of the paper in the same form. Authors may reproduce or authorize others to reproduce the above Paper for the Author's personal use or for internal company use, provided that the source and The Publisher copyright notice are mentioned, that the copies are not used in any way that implies The Publisher endorsement of a product or service of an employer, and that the copies are not offered for sale as such. Authors are permitted to grant third party requests for reprinting, republishing or other types of reuse. The Authors may make limited distribution of all or portions of the above Paper prior to publication if they inform The Publisher of the nature and extent of such limited distribution prior there to. Authors retain all proprietary rights in any process, procedure, or article of manufacture described in The Paper. This agreement becomes null and void if and only if the above paper is not accepted and published by The Publisher, or is with drawn by the author(s) before acceptance by the Publisher.