| Abstract: | Legal context. The impact of human rights on intellectual property("IP"), particularly in the light of the Human Rights Act 1998and 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 ofhuman rights in IP litigation is established: see decisionsin Levi v Tesco, Ashdown v Telegraph and ITP v Coflexip. However,the impact of human rights has been limited to extreme peripheralcases, without challenging the central priority accorded tothe interests of IP owners. After considering practical applicationsin "non commercial", "hybrid" and "commercial" fields, thisarticle argues for a more pervasive and central role for humanrights, by greater reference to the Human Rights Act 1998, theEU Charter, international human rights instruments, TRIPS anddecisions of other jurisdictions. This should enable a morebalanced 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 humanrights in IP litigationnot just in exceptional cases.Those resisting infringement may increase their prospect ofsuccess; those arguing for infringement will be better placedto counter arguments which may be raised. However, revisionof national, regional and international IP legislation wouldbe required to address all perceived social difficulties withIP. |
