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Abstract

This article focuses on one human rights treaty, the Convention, and the possible uses of its provisions to secure and expand intellectual property rights (“IP rights”). Although the Convention does not contain any provision specifically referencing IP rights, it does contain several provisions that could be used to expand IP rights. Furthermore, the existence of a substantial body of interpretive case law from the ECHR affords us a more detailed perspective on the manner in which the Convention could be used to further IP rights. Finally, the group of countries adhering to the Convention, though all part of Europe, represent a somewhat diverse collection of governments, from the U.K. to Germany, to the Czech Republic, to the former constituent states of the Soviet Union (including Russia), to Turkey. Although not completely representative of a range of possible human rights viewpoints, it is a sufficiently diverse group to provide a useful window into the problem.

The article begins with a brief examination of the Convention, followed by a discussion of provisions relevant to IP rights and some recent cases in the ECHR that raised the issue of using human rights provisions in an intellectual property context. Building on these cases and provisions, the article raises the following issues: (1) In what ways could the Convention be interpreted to expand or even create particular IP rights?; (2) Will the use of the Convention in these situations have unforeseen effects on IP rights as they are now understood?; (3) Who are the likely beneficiaries of the use of the Convention in intellectual property cases?; (4) What effect could the use of the Convention have on attempts to create a more global intellectual property law?; and (5) Could such uses weaken human rights protections in more traditional situations?

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