The Matters of Intellectual Property in the Practice of the European Court of Human Rights

Abstract

Article 1(1) of Protocol No. 1 to European Convention on Human Rights provides that every person is entitled to peaceful enjoyment of his possessions. Meanwhile, European Court of Human Rights in its processional practice gives rather wide interpretation of “property” category and refers to it not only physical objects, but also, inter alia, company shares, patents, goodwill in business, license to serve alcoholic beverages and other rights or interests, which are being economically significant or bear property nature. As the consequence, intellectual property rights, which, undoubtedly, can not be referred to physical objects, by virtue of high economical significance and property nature fit under the “property” category in accordance with Article 1 of Protocol No. 1. However, the central thesis of the present paper is that not any rights linked to the results of intellectual activity can be considered intellectual property rights, as well as not all the rights linked to intellectual property get protection on the basis of Article 1 of Protocol No. 1 to Convention. The conclusion is that some rights linked to getting legal protection of intellectual activity results can not be considered intellectual property rights, but being at the same time the property rights they fit under protection of Article 1 of Protocol No. 1 to Convention. Other rights linked to realization of creative potential are not considered “property” and can not be protected with help of Article 1 of Protocol No. 1 to Convention, but can get protection in accordance with other provisions of European Convention on Human Rights (for example, of Article 10).

DOI: 10.5901/mjss.2015.v6n3s3p241