ABSTRACT
This paper is an updated version of the chapter entitled ‘Reconceptualizing the Constitutional Dimension of Intellectual Property – An Update’ which appeared in the previous edition of the volume edited by Paul LC Torremans entitled ‘Intellectual Property Law and Human Rights’. It draws on previous research published by the author on the ongoing ‘constitutionalization’ of intellectual property rights through the increasing use by legislators and courts of human rights to shape the contours of the exclusive rights, in particular on the article ‘Constitutionalizing IP Law, The Influence of Fundamental Rights on Intellectual Property in Europe’ first published 20 years ago in the International Review of Intellectual Property and Competition Law. The chapter incorporates the most recent judicial developments at the European Union (EU) level, which confirmed the full validity and legitimacy of the use of fundamental rights to interpret and adapt IP laws. Drawing on these developments, it advances several proposals in order to construct a satisfying and balanced clause for IP at the constitutional level, demonstrating thus a closer connection to the interests of society.
First, the chapter proposes to link IP with the universally recognized right to culture and science, thereby mirroring a solution adopted at international and national levels in several countries. Second, it explores the protection that could be offered by the constitutional right to freedom of expression and information. Finally, the inclusion of IP within the protection of property at the constitutional level is analysed. It is demonstrated that the link with the property provision often guarantees that the social function of this right is extended to intellectual property. When combined with the proportionality principle that mandates a fair balance between competing fundamental rights, intellectual property is far from absolute and can, on the contrary, be limited by the interest of the society at large.
Overall, at a time when the constitutionalization of IP law is sometimes questioned, this chapter argues that human rights are still the most efficient and legitimate tools to guide the design and use of intellectual property law, and to inform sound policies in this field. It concludes that not less but a better constitutionalization is the way forward to secure an ethical and sustainable framework for innovation law.
Geiger, Christophe, The (Renewed) Relevance of Constitutionalizing Intellectual Property, Why Human Rights are More than Ever Crucial to Shape and Use IP Law (November 13, 2025), Innovation Law and Ethics Observatory (ILEO) Research Paper Series No 25-08; in: Paul Torremans (ed), Intellectual Property and Human Rights, 5th ed, Austin / Boston / Chicago / New York, The Netherlands, Kluwer Law International, 2026 (forthcoming).
Leave a Reply