Wednesday, November 23, 2016
Husovec @Hutko on Intellectual Property Rights and Integration By Conflict: The Past, Present, and Future
Martin Husovec, Tilburg Law and Economics Center (TILEC); Tilburg University Institute for Law, Technology, and Society (TILT); Stanford University Law School Center for Internet and Society, has published Intellectual Property Rights and Integration by Conflict: The Past, Present and Future at 18 Cambridge Yearbook of European Legal Studies 239 (2016). Here is the abstract.
This paper analyses how the Court of Justice of the European Union resolves conflicting situations surrounding intellectual property rights (IPR). More specifically, it looks into how it approaches clashes of IPR with other fundamental rights and economic freedoms and with what consequences. Building upon previous literature, I advance the argument that the resolution of the conflict, by means of the proportionality interest-balancing exercise, pursues a pro-harmonisation agenda not only in the obvious context of free movement, but also in the setting of fundamental rights. I show that the recent Coty Germany ruling is likely to accelerate this trend because of its recognition of positive obligations of the Member States in the context of fundamental rights. It is argued that this could also be used by national courts to improve an existing IPR framework, in particular by filing preliminary references that question legislators’ choices such as non-implementation of permissible exceptions and limitations. After highlighting the importance of maintaining a separation between different policy levels (secondary law vs Charter), I outline why Coty Germany is a very worrying reading of Article 17(2) of the EU Charter, and suggest that this could be remedied by synchronising its interpretation with the Court’s doctrine of ‘specific subject matter’ in the context of free movement.
The full text is not available from SSRN.