Christophe Geiger

Research Handbook on Human Rights and Intellectual Property

Research Handbook on Human Rights and Intellectual Property is a comprehensive reference work on the intersection of human rights and intellectual property law. Resulting from a field-specific expertise of over 40 scholars and professionals of world renown, the book explores practical and doctrinal implications of human rights considerations on intellectual property law and jurisprudence. The various chapters of the book scrutinize issues related to interactions among and between norms of different legal families and the role of human rights in the development of a balanced intellectual property legal framework. The innovative approach of the book is reflected in its structure: the first part provides a foundation for the human rights and intellectual property discourse; the second sheds light on the human rights implications for the development of intellectual property; and the third (characterised by a human rights perspective) is devoted to the specific issues of interaction between human rights and intellectual property. Exploring in depth a variety of interactions between human rights and intellectual property law, the book will be of great interest to academics and experts working within human rights, intellectual property, development, international relations and international public law.

The Social Function of Intellectual Property Rights, or How Ethics can Influence the Shape and Use of IP Law

The social function is inherent to any legal rule. It allows for the rights of individuals to be weighed against competing rights. Being part of a broader legal system, these rights must always be put in context with other rights of equal value and with collective interests. Insisting on the social function of intellectual property rights thus amounts to identifying a need for moderation and balance in their conception and implementation - a need that has sometimes been lost sight of in recent developments. Therefore, taking into closer consideration the social function of intellectual property rights might help counter and mitigate certain expansionist tendencies in current legislation. In a time when intellectual property rights are facing a serious crisis of legitimacy, the restoration of their social function puts universal ethical principles at the heart of the debate, which can only in the long term contribute to re-establishing their public acceptance.

Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach

In order to fight mass-scale copyright infringements on the Internet, numerous legislative initiatives have recently been proposed or adopted with the aim to improve the enforcement of copyright in the online world. This article evaluates the relevance of these enforcement strategies in the context of the unauthorised uses of copyrighted works by means of peer-to-peer file sharing or streaming. The dubious efficiency of some of the solutions adopted at national level, such as the implementation of graduate-response systems or the criminalisation of end users, is questioning the systematic increase of penalties as an appropriate reaction to address the problem of the general disrespect for copyright on the Internet. It rather calls for a new approach through the cautious legalisation of certain practices, in order to ensure that the copyright system continues to fulfil its basic function: the protection of creators and the encouragement of creativity.

The Anti-Counterfeiting Trade Agreement and Criminal Enforcement of Intellectual Property: What Consequences for the European Union?

The Anti-Counterfeiting Trade Agreement (ACTA) and the secrecy of its negotiation process have given rise to widespread speculation on the content and the objectives of the Agreement, leading to the development of considerable mistrust among the general public. This article concentrates on one of the most problematic aspects of the Agreement: the provisions on criminal enforcement. It will first show why criminal enforcement of intellectual property is generally a problematic issue, especially in the European Union, and then briefly try to demonstrate why ACTA is not the right answer in this regard, since criminal enforcement provisions clearly need a differentiated approach, an approach which is not reflected in the Agreement.

Implementing Intellectual Property Provisions in Human Rights Instruments: Towards a New Social Contract for Protection of Intangibles

Despite the crucial importance of ensuring a just balance of interests within intellectual property law, a well ‘thought-out’ IP clause is still lacking in an overwhelming majority of human rights instruments. Building upon the results of an empirical study of about 200 national constitutions and several leading international and European treaties on human rights, this chapter examines how the constitutional framework is guiding the understanding and shape of IP law. In particular, it examines different model provisions for IP included in human rights instruments and puts them in the context of selected judicial practice, general principles of legal interpretation and ‘quasi-constitutional’ rules of IP protection. Several solutions are ultimately advanced which could be envisaged in the future to construct a satisfying and balanced clause for IP at the constitutional level, capable of demonstrating by its ‘mere’ wording that intellectual property is intrinsically linked to the interests of society.

Copyright as an Access Right, Securing Cultural Participation Through the Protection of Creators’ Interests

Copyright, originally conceived as a tool to protect the author and to provide incentives to create for the benefit of society, is nowadays more and more perceived as a mechanism to the advantage of “large, impersonal and unlovable corporations”. The inherent social dimension of copyright law has progressively been lost of sight by policy makers to the benefit of strictly individualistic, even egotistic conceptions. In the recent discourse on the strengthening of legal means of protection, copyright is more frequently presented as an investment-protection mechanism than a vehicle of cultural and social progress. In this context, the society’s enrichment and future creativity are often portrayed in the rhetoric of the major economic players only as “a fortunate by-product of private entitlement”. This has provoked some important counter-reactions: as copyright is perceived mainly as a right to forbid, to sanction and punish, infringing copyright has sometimes evolved among younger generations to an act of protest, leading to a serious crisis of legitimacy. Even among creators, copyright is increasingly perceived as a hurdle in the creative process, as the success of so-called “open content” models clearly demonstrates.These developments urgently attest the need to rethink copyright in order to adapt its rules to its initially dual character 1) of a right to secure and organize cultural participation and access to creative works (access aspect); and 2) of a guarantee that the creator participates fairly in the fruit of the commercial exploitation of his (or her) works (protection aspect). Avoiding the privatisation of information by copyright law and assuring that cultural goods are still available for future innovations might mean (re)conceiving copyright as a right to access rather than a right to forbid, thereby emphasizing the inclusive rather than the exclusive nature of copyright protection.

Copyrighting ideas? - Copyright on information technology products and its consequences for future creativity

Ideas and information are at the heart of the knowledge economy and are increasingly sought after. Information also lies at the centre of intellectual property, even if it has been traditionally left outside the field of exclusivity. In addition to a recent evolution, some basic principles have progressively fallen from view and the subject has experienced a deep mutation. Copyright, originally designed to protect the author and to provide incentives for him to create for the benefit of society, is nowadays more and more used as a mechanism to protect investment, without taking into account the impact on future creativity. This change of paradigm has had a certain influence over the free use of information, which has been called into question in many regards. This contribution seeks first to briefly trace back this evolution, acknowledging the tendency towards a privatisation of information through copyright (understood here in an extended sense, including neighbouring and sui generis rights) and tries to propose remedies.

Intellectual Property and the Judiciary

The crucial impact of judicial decisions on the shape and shades of intellectual property (IP) law is widely recognised. Intellectual Property and the Judiciary is a jointly edited volume that provides a comprehensive picture of judicial specialization in IP. It holds that yielding the benefits of specialization while preserving the contextualized understanding of IP law is key to the quality and fairness of IP adjudication, understood as a weighing and balancing process for the implementation of IP rights. Due consideration of the public interest, fundamental rights, competition and free trade principles are key in that operation. Judges also play a crucial role to adjust IP law to technological and social development. Digitalization, automation, centralization and delegation of authority in law enforcement challenge traditional notions of IP enforcement, judgecraft and the judiciary itself.

Towards a Balanced International Legal Framework for Criminal Enforcement of Intellectual Property Rights

The harmonization of the legal framework for criminal enforcement of intellectual property rights (IPR) at the regional and international level has since its inception been a sensitive and difficult issue, mainly due to the diverging moral and cultural legal conceptions of negotiating parties and because of strong sovereignty issues traditionally raised by criminal law. Against this background, the current international provisions on the subject established in Article 61 of the TRIPS Agreement only provide for a minimum standard level on criminal measures for the infringement of intellectual property rights. This situation was perceived by many developed nations as the result of an ineffective multilateral approach and led them to advance precise and tougher TRIPS-plus provisions on criminal enforcement in bilateral, plurilateral or regional agreements. These efforts to strengthen the criminal framework in an undifferentiated manner caused strong counter-reactions and even led to the overall rejection of intellectual property rights protection in certain cases. The general tendency to criminalize end users in relation to copyright infringements on the Internet is a good example.

Moving out of the economic crisis: what role and shape for intellectual property rights in the European Union?

Christophe Geiger, Director of the Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg, gives an academic’s perspective to the analysis in Chapter 10. Well functioning Intellectual Property Rights (IPRs) are a necessity for promoting innovation and growth in Europe’s way out of the crisis. IPR intensive industries generate approximately 40 per cent of total economic activity in the EU. Besides affecting the European economy, the EU puts high hopes in IP in order to ensure food security, address climate change, deal with demographic change, improve the health of citizens and play an essential role in fostering cultural diversity. This Chapter assesses the challenge that the Barroso II Commission was faced with in fostering the development of a growth and competitiveness oriented framework for intellectual property (IP), while fully balancing the interests of all stakeholders and values more generally speaking. The analysis reveals how striking a balance can prove challenging. The EU’s IP system is a dearth of coherence, and in many respects still an incomplete construction. The recent failure of the Anti-Counterfeiting Trade Agreement (ACTA) goes to show that a consensus on the right balance between IPR’s and fundamental rights is never easily achieved, in particular when it is sought at the level the international cooperation. The Chapter concludes that paradoxically, the more important intellectual property rights have become to the crisis struck EU economy, the more they are contested. Having outlined the developments in the construction of the intellectual property regime at EU level, the Chapter briefly draws perspectives on how to secure the establishment for the future an EU IP system which would better combine innovation and societal concerns.