Human rights: in the real world

Legal context. The impact of human rights on intellectual property (“IP”), particularly in the light of the Human Rights Act 1998 and growing criticism of IP by civil society.

Key points. There can be a greater legal, as well as political, role for human rights in the development of IP. The place of human rights in IP litigation is established: see decisions in Levi v Tesco, Ashdown v Telegraph and ITP v Coflexip. However, the impact of human rights has been limited to extreme peripheral cases, without challenging the central priority accorded to the interests of IP owners. After considering practical applications in “non commercial”, “hybrid” and “commercial” fields, this article argues for a more pervasive and central role for human rights, by greater reference to the Human Rights Act 1998, the EU Charter, international human rights instruments, TRIPS and decisions of other jurisdictions. This should enable a more balanced outcome to be reached in many, but not all, cases.

Practical significance. IP owners, those challenging IP rights, and those advising them should all consider greater use of human rights in IP litigation—not just in exceptional cases. Those resisting infringement may increase their prospect of success; those arguing for infringement will be better placed to counter arguments which may be raised. However, revision of national, regional and international IP legislation would be required to address all perceived social difficulties with IP.