21.03.2024. » 05:31

OP - ED Intellectual Property Law as Part of the Corpus of Human Rights

How much do you know about intellectual property law? Do you happen to know which legal branches constitute intellectual property law? Were you aware that copyright, related rights, and industrial property rights are indirectly or directly defined by almost all relevant international contracts and conventions in the field of human rights?

Intellectual property law encompasses copyright and related rights on one hand, and industrial property rights on the other.

Copyright is a set of legal norms regulating relationships and occurrences related to the creation and use of literary, scientific, and artistic works, with its primary aim being to provide legal protection to the author and their work.

When it comes to Related rights (named for their similarity to copyright), rights included there are: rights of interpreter, phonogram producers, videogram producers, broadcasting producers, database producers, the right of the first publisher of a free work piece, and the right of publishers of printed editions to special remuneration. [1]

I would like to remind you that as far back as 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. Among other things, the declaration prohibited slavery and servitude, torture, inhuman or degrading treatment, emphasized equality before the law, the prohibition of arbitrary arrest, and the right to a fair and public trial. However, particular attention should be paid to Article 27(1) of the declaration, "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to participate in scientific advancement and its benefits," and Article 27(2) "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic product of which he is the author." [2] This article protects the holders of subjective rights in a young branch of law studied in legal theory as intellectual property law.

The term intellectual property encompasses several branches of law that regulate copyright, related rights, as well as patents, designs, trademarks, geographical indications, the protection of integrated circuit topographies, and plant varieties.

The exceptional importance of this legal area as well as the necessity to protect the holders of intellectual property rights were also recognized by the European Convention on Human Rights in Article 1 of Protocol 1, "Every natural or legal person is entitled to the peaceful enjoyment of his possessions; no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law." [3]

While there may be different theoretical views on the belongingness of intellectual property rights to the corpus of human rights [4], the European Court of Human Rights has protected the holders of these rights in numerous cases under Article 1 of Protocol 1 of the Convention – protection of the property of natural and legal persons (although these are immaterial goods) through case law. [5]

In the European Union, constitutional protection of intellectual property rights received a new impetus following the adoption of the Treaty of Lisbon in 2009. Within the framework of the aforementioned treaty, Article 17(2) explicitly protects intellectual property rights, albeit without further explanation of the term or the scope of protection. It is considered that intellectual property is specifically mentioned in the text of the Treaty due to "its increasing importance and the growing number of cases before the courts." The protection defined by Article 17(2) of the Treaty is modeled after Article 1 of Protocol 1 of the ECHR.

Equally significant as previous international legal instruments, the International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 15 defines "the obligation of states to recognize the right of everyone to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author." [6]

Finally, although the goods protected by intellectual property law are inherently immaterial (spiritual), substantive support, supranational character, and protection to the holders of these rights have been provided by the interpretation of Article 1 of Protocol 1 of the ECHR, which specifically proclaims the peaceful enjoyment of property by any natural or legal person – authors, interpreter, film producers, database producers, broadcasters, designers, inventors. Therefore, there should be no doubt that intellectual property rights can be regarded as part of international human rights.

Milan SMIKIĆ

PhD Candidate, Faculty of Law

[1] See more in S. Marković & D. Popović, 2019, Intellectual Property Law, Faculty of Law, Belgrade, V. Besarović, 2012, Intellectual Property, Faculty of Law, Belgrade.

[2] See the text of the Universal Declaration of Human Rights at https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[3] See the text of the European Convention on Human Rights at https://www.echr.coe.int/documents/d/echr/Convention_ENG

[4] M. Husovec, 2019, The Essence of Intellectual Property Rights Under Article 17(2) of the EU Charter, Cambridge University Press, 844, https://www.cambridge.org/core/services/aop-cambridge-core/content/view/pdf/the-essence-of-intellectual-property-rights-under-article-172-of-the-eu-charter.pdf

[5] See A.D. v. Netherlands, App. No. 21962/93, para. 3 (Jan. 11, 1994) (Eur. Comm’n on H.R.); Aral v. Turkey, App. No. 24563/ 94, para. 4 (Jan. 14, 1998) (Eur. Comm’n on H.R.); Dima v. Romania, App. No. 58472/00 (May 26, 2005), http://hudoc.echr.coe.int/eng?i=001-78043; Melnychuk v. Ukraine, App. No. 28743/03, para. 3 (July 5, 2005); Bălan v. Moldova, App. No. 19247/03, para. 34 (Jan. 29, 2008), http://hudoc.echr.coe.int/eng?i=001-84720; SC Editura Orizonturi SRL v. Romania, App. No. 15872/03, para. 70 (May 13, 2008), http://hudoc.echr.coe.int/eng?i=001-89794; SIA AKKA/LAA v. Latvia, App. No. 562/05, para. 41 (July 12, 2016), http://hudoc.echr.coe.int/eng?i=001-164659; Kline v. Netherlands, App. No. 12633/87 (Oct. 4, 1990) (Eur. Comm’n on H.R.); Lenzing AG v. United Kingdom App. No. 38817/97 (Sept. 9, 1998) (Eur. Comm’n on H.R.); Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, para. 72 (Jan. 11, 2007), http://hudoc.echr.coe.int/eng?i=001-78981; Paeffgen Gmbh v. Germany, App. Nos. 25379/04, 21688/05, 21722/05, 21770/05 (Sept. 18, 2007).

[6] See the full text of the International Covenant on Economic, Social and Cultural Rights (1966.) at https://treaties.un.org/doc/treaties/1976/01/19760103%2009-57%20pm/ch_iv_03.pdf