Elena Izyumenko (Institute for Information Law – IViR, University of Amsterdam) and Christophe Geiger (Innovation Law and Ethics Observatory – ILEO, Luiss Guido Carli University, Rome)
Human Rights and Intellectual Property before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights (Elgar Commentaries in European Law, Edward Elgar Publishing, 2025).
Can a State force online platforms to filter user uploads without breaching freedom of expression? Can a parodist invoke artistic freedom to defend the use of the Camel trademark? Can a journalist publish leaked military reports despite copyright claims? And can a patent be refused in the name of human dignity?
These are not abstract thought experiments. They are real disputes decided by the Court of Justice of the European Union and the European Court of Human Rights – and they offer rich material for socio-legal inquiry into how law operates in practice, how courts shape social norms, and how human rights claims are mobilised in concrete conflicts. They are also just a glimpse of the constitutional battles explored in our new book.
Why look at IP through a human rights lens?
Intellectual property (IP) is often perceived as a technical and economically driven field. Yet in Europe, it has become deeply constitutionalised. Copyright, trademarks, patents, and trade secrets are no longer interpreted in isolation. They are routinely assessed against the standards of the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.
From a socio-legal perspective, this shift highlights the growing entanglement between legal doctrine, technological change, market practices, and broader societal values. The right to property explicitly protects intellectual property. But that protection is not absolute. Courts must balance it against freedom of expression, privacy, non-discrimination, business freedoms, and procedural guarantees such as access to a court and the right to an effective remedy.
This balancing exercise has intensified in the digital environment. Cases concerning hyperlinking, platform liability, filtering injunctions, identity disclosure orders, or refusals of controversial trademarks show that the constitutional dimension of IP is no longer peripheral – it is central. They also illustrate how legal conflicts around innovation, creativity, and information governance are shaped by institutional settings, litigation strategies, and shifting social expectations.
What does the book offer?
The book provides the first comprehensive, structured analysis of how both European Courts have addressed the intersection of IP and human rights from their inception (1952 in Luxembourg, 1959 in Strasbourg) through April 2025.
Drawing on more than 200 decisions, it:
- Maps how and when intellectual property qualifies as a “possession” under the human right to property
- Examines how freedom of expression operates as both an internal and external limit to copyright and trademark protection
- Analyses privacy and data protection challenges arising from IP enforcement measures such as search orders and disclosure injunctions
- Assesses the role of business freedoms in EU IP litigation
- Reviews discrimination claims in copyright, trademark, and patent disputes
- Explores the procedural dimension of IP disputes: independence of tribunals, access to court, effective remedies, and good administration
Each chapter begins with a thematic analytical overview and is followed by carefully selected case summaries, highlighting the specific human rights reasoning of the courts. By combining doctrinal analysis with close attention to litigation contexts and institutional dynamics, the book also offers entry points for empirical, critical, and interdisciplinary socio-legal research.
Beyond doctrine: judicial dialogue and constitutional structure
One of the most fascinating aspects of this jurisprudence is the dialogue between Luxembourg and Strasbourg. The CJEU increasingly draws inspiration from the ECtHR, while the Strasbourg Court engages more deeply with IP-related claims than ever before.
The result is not a uniform doctrine, but a dynamic and evolving constitutional landscape in which intellectual property is both protected and limited through fundamental rights reasoning.
Who is this book for?
The volume is designed as both a reference work and an analytical guide. It will be useful for judges, practitioners, and scholars working in IP or human rights law, as well as for advanced students seeking a structured entry point into this complex field. It will also be of interest to socio-legal researchers examining courts as sites of governance, the social life of rights, and the interaction between legal institutions, economic actors, and cultural practices.
At a time when IP disputes routinely raise constitutional questions – from digital platform governance to artistic freedom and procedural fairness – understanding how Europe’s highest courts navigate these tensions is essential.
Our hope is that this book helps make that jurisprudence more accessible, more transparent, and more open to critical reflection – and that it encourages further research into the intricate and still evolving relationship between IP and human rights in Europe and beyond, including work that situates these legal developments within their broader social, political, and technological contexts.