The new innovation frontier? Intellectual property and the European court of human rights

Harvard International Law Journal

Volumn 49, Issue 1, 2008, Pages 1-52

  Helfer, Laurence R ^a,b  

^a Department of Law ^*

^b VANDERBILT UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 39649102739     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (372)

1. For a detailed discussion of the ECHRs success and its influence on other international tribunals, see Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 CAL. L. REV. 899, 917-22 (2005);
2. Laurence R. Helfer, Adjudicating Copyright Claims Under the TRIPs Agreement: The Case for a European Human Rights Analogy, 39 HARV. INT'L L.J. 357, 399-410 (1998) [hereinafter Helfer, Adjudicating Copyright Claims];
3. Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 297-98 (1997).
4. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention].
5. Loizidou v. Turkey, App. No. 15318/89, 310 Eur. Ct. H.R. (ser. A) at 27 (1995) (preliminary objections).
6. See ECHR, SURVEY OF ACTIVITIES 2006, http://www.echr.coe.int/NR/rdonlyres/69564084-9825-430B-9150-A9137DD22737/0/ Survey_2006.pdf.
7. Article 1 of Protocol 1 states in its entirety: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, Mar. 20, 1952, 213 U.N.T.S. 262, [hereinafter Protocol 1]. Although the drafters of Article 1 "spoke of right of property' or 'right to property' to describe the subject-matter" protected by this clause, Marckx v. Belgium, App. No. 6833/74, 31 Eur. Ct. H.R. (ser. A), ¶ 63 (1979), the ECHR has consistently described this provision as guaranteeing the right of property. See, e.g., Hutten-Czapska v. Poland, App. No. 35014/97, 45 Eur. H.R. Rep. 4 [52], 129 (Grand Chamber 2007) (judgment of June 19, 2006) (holding that government had "failed to strike the requisite fair balance between the general interests of the community and the protection of the right of property") (emphasis added) [Due to a change in 2000, recent volumes of the European Human Rights Report do not use standard citation formats for cases. For the reader's convenience, the Report's citation is given, along with the more traditional starting page number in brackets afterward. Eds.].
8. See Arjen van Rijn, Right to the Peaceful Enjoyment of One's Possessions, in THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 863, 864 (Pieter van Dijk et al. eds., 4th ed. 2006) ("[T]he right of property has lost a good deal of its inviolability, also in the Member States of the Council of Europe, under the influence of modern social policy (Sozialstaat). This fact is reflected in the very far-reaching limitations which Article 1 allows.").
9. See infra Part III (reviewing intellectual property rulings of the ECHR and the European Commission).
10. See Dima v. Romania, App. No. 58472/00, para. 87 (2005) (admissibility decision) (in French only; unofficial English translation on file with author) (copyrighted works protected by Article 1);
11. Melnychuk v, Ukraine, App. No. 28743/03, para. 8 (2005) (admissibility decision) (intellectual property protected by Article 1);
12. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 44 Eur. H.R. Rep. 42 [846], 855-56 (Chamber 2007) (judgment of Oct. 11, 2005) (registered trademarks protected by Article 1).
13. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830] (Grand Chamber 2007).
14. The facts of the Anheuser-Busch case are complex. In essence, the ECHR concluded that Portugal had not interfered with the American brewer's application to register the trademark "Budweiser" because the application had been contested by Budějovický Budvar, the owner of a previously registered geographical indication for "Budweiser Bier." For a more detailed analysis of the case, see infra Part III.A.
15. Intellectual property owners have heralded Anheuser-Busch as a watershed ruling, suggesting that the case may trigger the filing of new complaints alleging violations of Article 1. See, e.g., Burkhart Goebel, Geographical Indications and Trademarks in Europe, 95 TRADEMARK REP. 1165, 1179 (2005) (describing the 2005 Chamber judgment as "remarkable and most important" in recognizing trademarks "as protected fundamental rights");
16. Arthur Rogers, Anheuser-Busch Hails European Court Ruling that Trademark Applications Get Protections, 24 INT'L TRADE REP. 72, 72 (2007) (characterizing the 2007 Grand Chamber judgment as a "landmark" decision).
17. See Protocol 1, supra note 5, art. 1 ("Every natural or legal person is entitled to the peaceful enjoyment of his possessions.") (emphasis added).
18. See also infra notes 23 & 178 and accompanying text (discussing the rationales for protecting the property rights of corporations and other business entities in the European human rights system).
19. See, e.g., EUR. PARL. ASSEMB., Implementation of Judgments of the European Court of Human Rights: Supplementary Introductory Memorandum (revised), AS/Jur (2005) 55 rev., 11-13 (2005), available at http://assembly.coe.int/CommitteeDocs/2005/ 20051220_Ejdoc55.pdf (assessing compliance with ECHR judgments involving widespread human rights abuses by the Russian military in Chechnya and massive structural failures of the Russian courts and the criminal justice system);
20. Menno T. Kamminga, Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?, 12 NETH. Q. HUM. RTS. 153, 153-54 (1994) (analyzing past cases and suggesting that there will be an increasing number of systemic human rights abuses challenged before the ECHR);
21. Paul Mahoney, Speculating on the Future of the Reformed European Court of Human Rights, 20 HUM. RTS. L.J. 1, 4 (1999) (predicting that the ECHR will increasingly be confronted with "serious human rights violations" such as "minorities in conflict with [a] central government" and cases relating to "terrorism, violence, and civil strife").
22. Lucius Caflisch, The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond, 6 HUM. RTS. L. REV. 403, 404 (2006) ("[T]he Court is presently confronted with an accumulated case-load of 82,600 applications, out of which 45,550 were made in 2005, the yearly capacity of absorption of the Court now being at around 28,000 cases,").
23. See, e,g., U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Human Rights and Intellectual Property, U.N. Doc. E/C.12/2001/15 (Dec. 14, 2001) (analyzing conflicts between intellectual property and the International Covenant on Economic, Social, and Cultural Rights);
24. The High Commissioner, Report of the High Commissioner on the Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, delivered to the Sub-Comm'n on the Promotion and Protection of Human Rights, U.N. Doc. E/CN.4/Sub.2/2001/13 (June 27, 2001);
25. ECOSOC, Sub-Comm'n on the Promotion and Protection of Human Rights, The Realization of Economic, Social and Cultural Rights, at 3, U.N. Doc. E/CN.4/Sub.2/2000/L.20 (Aug. 11, 2000) (identifying conflicts between intellectual property and "the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination").
26. For more detailed analyses of these developments, see, for example, Christophe Geiger, "Constitutionalising" Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union, 37 INT'L REV. INTELL. PROP. & COMPETITION L. 371, 382, 390-97 (2006) [hereinafter Geiger, Constitutionalising Intellectual Property Law] (analyzing recent intellectual property cases from Belgium, France, Germany, the Netherlands, Switzerland, and countries outside of Europe that raise non-trivial freedom of expression issues);
27. Christophe Geiger, Fundamental Rights, a Safeguard for the Coherence of Intellectual Property Law?, 35 INT'L REV. INTBLL. PROP. & COMPETITION L. 268, 277 (2004) [hereinafter Geiger, Fundamental Rights Safeguard] (analyzing "decisions in the field of copyright in which the freedom of expression has been invoked to justify a use that is not covered by an exception provided for in [intellectual property] law");
28. Laurence R. Helfer, Towarda Human Rights Framework for IntellectualProperty, 40 U.C. DAVIS L. REV. 971, 1001-14 (2007) [hereinafter Heifer, Human Rights Framework] (analyzing recent treaty-making initiatives in the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, and the World Intellectual Property Organization concerning the relationship between human rights and intellectual property);
29. Laurence R. Helfer, Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 YALE J. INT'L L. 1, 26-53 (2004) (analyzing intellectual property standard setting in the biodiversity, plant genetic resources, public health, and human rights regimes).
30. Geiger, Fundamental Rights Safeguard, supra note 15, at 278;
31. see also Heifer, Human Rights Framework, supra note 15, at 1017-18 (analyzing how international human rights law can be interpreted to impose "external limits on intellectual property").
32. See, e.g., Michael A. Carrier, Cabining Intellectual Property Through a Property Paradigm, 54 DUKE L.J. 1, 1 (2004) (stating that "[o]ne of the most revolutionary legal changes in the past generation has been the 'propertization' of inrellectual property");
33. Kal Raustiala, Density and Conflict in International Intellectual Property Law, 40 U.C. DAVIS L. REV. 1021, 1032 (2007) (stating that "the embrace of [intellectual property] by human rights advocates and entities ... is likely to further entrench some dangerous ideas about property: in particular, that property rights as human rights ought to be inviolable and ought to receive extremely solicitous attention from the international community"),
34. See Charter of Fundamental Rights of the European Union art. 17, Dec. 7, 2000 O.J. (C 364) 1 ("Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. . . . Intellectual property shall be protected."), available at http://www.europarl. europa.eu/charter/pdf/text_en.pdf.
35. See ECOSOC, Comm. on Econ., Soc. and Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He or She Is the Author (Article 15, Paragraph 1(c) of the Covenant), U.N. Doc. E/C.12/GC/17 (Nov. 21, 2005) [hereinafter General Comment], available at http://www.ohchr.org/english/bodies/cescr/docs/ gc17.doc.
36. See, e.g., Joseph Straus, Design Protection for Spare Parts Gone in Europe? Proposed Changes to the EC Directive: The Commission's Mandate and its Doubtful Execution, 27 EUR. INTELL. PROP. REV. 391, 398 (2005) (discussing 2000 decision of the Federal Constitutional Court holding that patents constitute property under the German Constitution);
37. Thomas Crampton, Apple Gets French Support in Music Compatibility Case, N.Y. TIMES, July 29, 2006, at C9 (discussing a ruling of the French Constitutional Council, the country's highest judicial body, which "declared major aspects of the so-called iPod law unconstitutional" and "made frequent reference to the 1789 Declaration on Human Rights and concluded that the law violated the constitutional protections of property").
38. See, e.g., Zoltek Corp. v. United States, 442 F.3d 1345 (Fed. Gr. 2006) (rejecting a claim that the federal government's uncompensated use of a patent amounts to a taking of private property in violation of the U.S. Constitution), reh'g denied, 464 F.3d 1335 (Fed Cir. 2006).
39. The few existing analyses of intellectual property in the European human rights system focus on treaty provisions that restrict intellectual property-such as the right to freedom of expression-or emphasize the European Convention's influence on the intellectual property laws of a specific country. See P. Bernt Hugenholtz, Copyright and Freedom of Expression in Europe, in EXPANDING THE BOUNDARIES OF INTELLECTUAL PROPERTY: INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY 343 (Rochelle Cooper Dreyfuss et al. eds., 2001);
40. Timothy Pinto, The Influence of the European Convention on Intellectual Property Rights, 24 EUR. INTELL. PROP. REV. 209 (2002). No comprehensive study of the European human rights tribunals' intellectual property jurisprudence under the Convention's property rights clause has ever been attempted.
41. See generally MARIUS EMBERLAND, THE HUMAN RIGHTS OF COMPANIES: EXPLORING THE STRUCTURE OF ECHR PROTECTION (2006).
42. See generally ALASTAIR R. MOWBRAY, THE DEVELOPMENT OF POSITIVE OBLIGATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS BY THE EUROPEAN COURT OF HUMAN RIGHTS (2004).
43. For a discussion of "positive obligations" relating to the right of property, see infra Part IV.B.
44. See Helfer, Adjudicating Copyright Claims, supra note 1, at 407.
45. For more detailed analyses of the right of property in the European human rights sysrem, see ALI RIZA ÇOBAN, PROTECTION OF PROPERTY RIGHTS WITHIN THE EUROPEAN CONVENTION ON HUMAN RIGHTS 124-25 (2004);
46. CAMILO B. SHUTTE, THE EUROPEAN FUNDAMENTAL RIGHT OF PROPERTY (2004);
47. Rijn, supra note 6.
48. See Protocol 1, supra note 5, art. 1.
49. See ÇOBAN, supra note 26, at 124-25 (reviewing Article 1's drafting history).
50. See id. at 127-37;
51. Helen Mountfield, Regulatory Expropriations in Europe: The Approach of the European Court of Human Rights, 11 N.Y.U. ENVTL. L.J. 136, 146-47 (2002).
52. See Kopecký v. Slovakia, App. No. 44912/98, 2004-IX Eur. Ct. H.R. 125, 144 (Grand Chamber).
53. Kechko v. Ukraine, App. No. 63134/00, ¶ 22 (2005).
54. Öneryildiz v. Turkey, App. No. 48939/99, 2004-XII Eur. Ct. H.R. 79, 127 (Grand Chamber).
55. See ÇOBAN, supra note 26, at 152-55 (collecting recent decisions);
56. David Anderson, Compensation for Interference with Property, 6 EUR. HUM. RTS. L. REV. 543, 546 (1999) (same).
57. Kopecký, 2004-IX Eur. Ct. H.R. at 139-40 (enumeration added).
58. See ÇOBAN, supra note 26, at 152-55 (collecting recent decisions).
59. Kopecký, 2004-IX Eur. Ct. H.R. at 140;
60. see also Gratzinger v. Czech Republic, App. No. 39794/98, 2002-VII Eur. Ct. H.R. 399, 419-20 (Grand Chamber). The ECHR has often applied these principles to complaints seeking restitution of real or personal property seized by socialist governments in Eastern Europe. The Court has held that former property owners have no "legitimate expectation" of receiving restitution if they do not have "a currently enforceable claim that was sufficiently established," for example because they do not meet "one of the essential statutory conditions" for recovery of previously owned property or because there is "a dispute as to the correct interpretation and application of domestic law by the national courts." Rosival v. Slovakia, App. No. 17684/02, para. 75 (2007) (admissibility decision) (internal citations omitted).
61. See Zhigalev v. Russia, App. No. 54891/00, ¶ 131 (2006);
62. Kopecký, 2004-IX Eur. Ct. H.R. at 144-45.
63. Hellborg v. Sweden, App. No. 47473/99, 45 Eur. H.R. Rep. 3 [29], 43 (2007) (judgment of Feb. 28, 2006) (explaining this distinction);
64. see also ÇOBAN, supra note 26, at 174-86. The ECHR has also recognized a third category-interference with the substance of property. This caregory is reserved for government intrusions that, as a formal matter, "do[] not transfer the property to public authorities, nor . . . limit or control the use of the property . . . ."
65. Id. at 187. In practice, however, the Court has not applied this concept consistently or coherently. Commentators have also noted that the cases decided under this rubric could easily fit under the first two categories.
66. See id. at 189;
67. Anderson, supra note 33, at 551-52. For these reasons, I do not give separate treatment to "substance of property" claims.
68. Mountfield, supra note 29, at 146;
69. see also ÇOBAN, supra note 26, at 175-85 (analyzing deprivations and comparing them to controls on use).
70. Jahn v. Germany, App. No. 46720/99, 42 Eur. H.R. Rep. 49 [1085], 1103-04 (Grand Chamber 2006) (judgment of June 30, 2005).
71. Kirilova v. Bulgaria, App. No. 42908/98, ¶ 106 (2005).
72. L.B. v. Italy, App. No. 32542/96, ¶ 23 (2002).
73. Pine Valley Dev. Ltd. v. Ireland, App. No. 12742/87, 222 Eur. Ct. H.R. (ser. A) at 23 (1991).
74. The Court has justified this differential treatment on public choice grounds, reasoning that nonnationals lack representation in domestic political processes and thus risk bearing a disproportionate share of the costs of property deprivations. See Lithgow v. United Kingdom, App. No. 9006/80, 102 Eur. Ct. H.R. (ser. A) at 49 (1986).
75. See Tom Allen, Compensation for Property Under the European Convention of Human Rights, 28 MICH. J. INT'L L. 287, 298-300 (2007). When the state deprives non-nationals of their property, Article 1's reference to "the general principles of international law" mandates the payment of prompt, adequate, and effective compensation.
76. Protocol 1, supra note 5, art. 1;
77. Anderson, supra note 33, at 548. By contrast, Article 1 does not require compensation to be paid to nationals.
78. Lithgow, 102 Eur. Ct. H.R. (set. A) at 47-49. In practice, however, the Court has applied an equivalent standard of compensation to both types of takings. As a result, where a state deprives its own citizens of their property, it must normally pay "an amount reasonably related to its value," and its failure to provide any compensation "can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances."
79. Scordino v. Italy, App. No. 36813/97, 45 Eur. H.R. Rep. 7 [207], 239 (Grand Chamber 2006) (judgment of Mar. 30, 2005).
80. Hutten-Czapska v. Poland, App. No. 35014/97, 45 Eur. H.R. Rep. 4 [52], 108 (Grand Chamber 2007) (judgment of June 19, 2006).
81. Kirilova v. Bulgaria, App. No. 42908/98, ¶ 106 (2005);
82. Broniowski v. Poland, App. No. 31443/96, 2004-V Eur. Ct. H.R. 1 (Grand Chamber).
83. Draon v. France, App. No. 1513/03, 42 Eur. H.R. Rep. 40 [807], 832-33 (2006) (judgment of Oct. 6, 2005) (internal quotations omitted).
84. Id.
85. Scordino, 45 Eur. H.R. Rep. 7 at 239.
86. ÇOBAN, supra note 26, at 258 (stating that over the last decade "both the magnitude and variety of the applications regarding [Article 1] have escalated significantly and the number of the judgments rose consequently"). Not surprisingly, this expansion followed the accession of Eastern European countries to the Convention in the 1990s. These states have faced significant challenges to reallocating property rights during their transition from socialist to democratic systems of government.
87. See Tom Allen, Restitution and Transitional Justice in the European Court of Human Rights, 13 COLUM. J. EUR. L. 1, 13-29 (2006/2007).
88. Jahn v. Germany, App. No. 46720/99, 42 Eur. H.R. Rep. 49 [1085], 1105 (Grand Chamber 2006) (judgment of June 30, 2005);
89. see also Fedorenko v. Ukraine, App. No. 25921/02, ¶ 29 (2006) (asserting that the state's "margin of appreciation . . . goes hand in hand with European supervision" which authorizes the ECHR to "ascertain whether the discretion afforded to the Government was overstepped").
90. Kopecký v. Slovakia, App. No. 44912/98, 2004-IX Eur. Ct. H.R. 125, 155 (Grand Chamber 2004) (Strážnická, J., dissenting) ("In the Court's case-law from 2000 onwards, a tendency may be discerned to subject the application of national law to supervisory review by the Court.");
91. ÇOBAN, supra note 26, at 258 (stating that the ECHR has found "more and more violations of [Article 1] in the last couple of years" and that it "is not as reluctant as it was before to find [a] violation").
92. See Lenzing AG v. United Kingdom, App. No. 38817/97, 94-A Eur. Comm'n H.R. Dec. & Rep. 136 (1998) (patent);
93. Aral v. Turkey, App. No. 24563/94 (1998) (admissibility decision) (copyright);
94. Smith Kline & French Lab. Ltd. v. Netherlands, App. No. 12633/87, 66 Eur. Comm'n H.R. Dec. & Rep. 70, 79 (1990) (admissibility decision) (patent).
95. In a 1995 ruling, British Am. Tobacco Co. Ltd. v. Netherlands, App. No. 19589/92, 331 Eur. Ct. H.R. (ser. A) (1995), the Court avoided deciding whether patent applications are possessions - an issue I discuss in greater detail below. See infra Part III.A.2,
96. See supra note 8.
97. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 44 Eur. H.R. Rep. 42 [836], 856 (Chamber 2007) (judgment of Oct. 11, 2005). I discuss the complex facts and procedural history of the case below. See infra Part III.A.2.a.
98. European Convention, supra note 2, art. 43.
99. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 849 (Grand Chamber 2007). Both the concurring and dissenting judges agreed that Article 1 applies "to intellectual property in general and to a duly registered trade mark." Id. at 853 (Steiner it Hajiyev, J.J., concurring), 855 (Caflisch & Cabral Barreto, J.J., dissenting).
100. Smith Kline & French Lab. Ltd. v. Netherlands, App. No. 12633/87, 66 Eur. Comm'n H.R. Dec. & Rep. 70, 79 (1990) (admissibility decision).
101. See LAURENT SERMET, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND PROPERTY RIGHTS 13 (1998) ("patents have two characteristics - exclusiveness and transferability - which are also hallmarks of property").
102. See supra Part II.B.
103. Compulsory licenses fit easily within the concept of Article 1 "assets," even where the amount of compensation is determined ex post by a government agency or royalty tribunal. See Broniowski v. Poland, App. No. 31443/96, 2004-V Eur. Ct. H.R. 1, 54 (Grand Chamber) (applying Article 1 to a right "to obtain . . . compensatory property" notwithstanding the fact that the "right was created in a somewhat inchoate form, as its materialisation was to be effected by an administrative decision allocating State property to" the applicant).
104. Dima v. Romania, App. No. 58472/00 (2005) (admissibility decision).
105. The ECHR does not indicate whether Dima prepared his initial design for the competition, although that is the most plausible interpretation of the facts. See id. at paras. 3-4.
106. Id. at para. 6 ("auteur des maquettes graphiques" in French).
107. The Patent and Trademark Office also based its refusal on an unpublished internal rule which provided that industrial drawings and models representing the emblem of a state were excluded from copyright protection ("droit d'auteur"). Id. at para. 9. The ECHR did not explain why an industrial property office believed itself competent to interpret an issue of copyright law. However, settled grounds for rejecting the registration of state symbols as trademarks appear in Article 6 ter of the Paris Convention, which prohibits the registration and use of "armorial bearings, flags, and other State emblems" as such marks or as elements thereof "without authorization by the competent authorities. . . ."
108. Id. at para. 27 (citing Paris Convention for the Protection of Industrial Property, art. 6 ter, Mar. 20, 1883, 828 U.N.T.S. 305). Although the Patent and Trademark Office did not rely upon this provision in denying Dima's registration, Romania cited it in opposing his complaint to the ECHR.
109. See id. at paras. 7, 18.
110. See Dima, App. No. 58472/00. at paras. 11-26.
111. The Supreme Court emphasized the collective process of the models' creation and the decisive role played by the Parliament in selecting the final models. See id at para. 14.
112. According to the ECHR, the 1996 statute was adopted to "modernize the field of copyright" after the fall of the socialist regime in 1989- See id. at paras. 61-62.
113. Id. at para. 13.
114. Dima's complaint to the ECHR also raised two other claims: (1) the government's failure to compensate him for his work, and (2) various procedural objections to the domestic infringement proceedings. As to the first claim, the ECHR ruled that Dima had failed to exhaust domestic remedies, thus precluding the Court from reviewing his allegations on the merits. Id. at paras. 78-81. As to the second claim, the ECHR rejected all of Dima's objections save one - a challenge to a report produced by an expert witness for one of the defendants. As to that issue, it declared Dima's complaint admissible.
115. Id. at paras. 66-67. In November 2006, the ECHR concluded that Romania had violated the European Convention's right to a fair hearing when the Romanian Supreme Court dismissed his appeal without addressing Dima's challenge to the expert's report. The Court awarded Dima €2,000 in damages.
116. See Affaire Dima c. Roumanie, App. No. 58472/00 (2006);
117. see also Press Release, Registrar, European Court of Human Rights, Chamber Judgments Concerning Azerbaijan, Bulgaria, Croatia, Italy, Lithuania, Romania and Russia (Nov. 16, 2006) (summarizing the ECHR's judgment in English).
118. Decree No. 321 Relating to Copyright, June 18, 1956, art. 9 (Rom.) (copy on file with author).
119. Id. art. 2.
120. See Dima v. Romania, App. No. 58472/00, para. 38 (2005) (admissibility decision).
121. Id. at para. 87.
122. Id. at para. 88.
123. Id. at para. 89.
124. Id. at para. 91.
125. Id. at para. 92.
126. Id. at para. 93.
127. See Orit Fischman Afori, Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law, 14 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 497, 524 (2004) (stating that "the center of copyright as a human right lies in the moral rights arena").
128. But see General Comment, supra note 19, ¶¶ 30-34, 44-46 (emphasizing importance of economic exploitation rights for creators and innovators and their interdependence with moral rights).
129. Compare ÇOBAN, supra note 26, at 149-50 (suggesting that Article 1 covers only the economic value of a possession),
130. with Geiger, Constitutionalising Intellectual Property Law, supra note 15, at 383 & n.54 (suggesting that Article 1 also protects moral rights).
131. Plausible illustrations of such claims include disputes over the government's removal or destruction of sculptures, murals, or other works of visual art from public buildings or parks. Cf. Rebecca Stuart, Comment, A Work of Heart: A Proposal for a Revision of the Visual Artists Rights Act of 1990 to Bring the United States Closer to International Standards, 47 SANTA CLARA L. REV. 645, 659-76 (2007) (reviewing cases decided under U.S. moral rights statute in which creators challenged the government's removal, destruction, or mutilation of works of visual art, and comparing U.S. law to the protection of moral rights in international agreements and in other countries).
132. See Dima v. Romania, App. No. 58472/00, para. 80 (2005) (admissibility decision). Dima challenged the government's reliance on these authorities.
133. See supra note 67 and accompanying text (discussing these two provisions).
134. See supra Part II.C.
135. See European Rights Court Rejects Budweiser Bid for Protection Against Rival Czech Brand, 70 PAT. TRADEMARK & COPYRIGHT J. 668, 668 (2005);
136. Jeremy Reed, ECJ Protects Simple Geographical Indications for their Bud-dy, 27 EUR. INTELL. PROP. REV. 25 (2005);
137. Budweiser Budvar, Disputes Concerning Registered Trademarks, http://www.budvar.cz/en/web/Znacka-Budvar/Znamka-Budvar.html (last visited Nov. 14, 2007).
138. The World Intellectual Property Organization (WIPO) defines a GI as a "sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin." World Intellectual Property Organization, About Geographical Indications, http://www.wipo.int/about-ip/en/about_geographical_ind.html#P16_1100 (last visited Nov. 14, 2007). The TRIPs Agreement has a similar definition. Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 22.1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments - Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TRIPs].
139. The Lisbon Agreement defines an appellation of origin as "the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors." Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration, art. 2(1), Oct. 31, 1958, last amended Sept. 28, 1979, 923 U.N.T.S. 205. For a discussion of the relationship berween GIs and appellations of origin, see Felix Addor & Alexandra Grazioli, Geographical Indications Beyond Wines and Spirits: A Roadmap for a Better Protection for Geographical Indications in the WTO/TRIPS Agreement, 5 J. WORLD INTELL. PROP. 865, 867-69 (2002).
140. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 833-34 (Grand Chamber 2007). The 1968 registration was filed pursuant to the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, which was opened for signature on October 31, 1958. Id.
141. Id. at 834. The Lisbon Court of First Instance held that, under the terms of the Lisbon Agreement, appellations of origin were "reserved to the geographical name of a country, region, or locality, which served to designate a product originating therein .... 'Budweiser' did not come within this category."
142. Id.
143. For a more detailed explanation of this issue, see infra note 95 and accompanying text.
144. Id. Budějovický had filed an opposition to the application to register the Anheuser-Busch mark with the industrial property office. Notwithstanding this opposition, the office issued a certificate of registration to the American brewer in June 1995.
145. See id.
146. Id at 834-35.
147. The translation from Czech to German is not serendipitous. Until the middle of the last century, a large German-speaking population resided in the Bohemia region of the Czech Republic (formerly Czechoslovakia and, before 1918, a province of the Austro-Hungarian Empire). According to the Budweiser Budvar website, "[s]ince the 14th century the official name of [České Budějovice] was Budweis. Only in 1918 was the name changed into the Czech name of České Budějovice. However, the indication Budweis is today the official translation of the name of the city into many foreign languages," Budweiser Budvar, Information About Trademarks, http://www.budvar.cz/en/web/Znacka-Budvar/Znamka-Budvar.html (last visited Nov. 14, 2007).
148. Anheuser-Busch disputed that the appellation of origin "Českobudějovický Budvar" corresponds to the German expression "Budweiser," with the result that, even if the bilateral treaty applied to translations, it did not support the registration of "Budweiser Bier" as a geographical indication. The Supreme Court of Portugal rejected this argument. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 44 Eur. H.R. Rep. 42 [846], 848-49 (Chamber 2007) (judgment of Oct. 11, 2005).
149. TRIPs, supra note 89, art. 24. Anheuser-Busch claimed a right of priority for its "Budweiser" mark application under Article 24(5) of TRIPs, which addresses a subset of the conflicts between geographical indications and trademarks. Article 24(5) gives priority to trademarks that have been applied for or registered in good fairh before the entry into force of TRIPs or before the geographical indication is protected in its country of origin. The Supreme Court rejected the American company's claim of priority under this provision. Anheuser-Busch, 44 Eur. H.R. Rep. 42 at 848-49 (Chamber).
150. For a more detailed discussion of the court's decision, see Antonio Corte-Real, The Budweiser Case in Portugal, 24 EUR. INTELL. PROP. REV. 43 (2002).
151. Anheuser-Busch, 44 Eur. H.R. Rep. 42 at 853-56 (Chamber). The 1986 bilateral agreement entered into force for Portugal on March 7, 1987.
152. Id. at 848.
153. Id at 852; Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 840-41 (Grand Chamber 2007). The Portuguese courts had held that "the mere filing of an application for registration conferred on the applicant a 'legal expectation' that warranted the protection of the law."
154. Anheuser-Busch, 44 Eur. H.R. Rep. 42 at 852 (Chamber). This expectation was later codified in a provision of the Portugese Code of Industrial Property - enacted after the conclusion of the domestic litigation between Anheuser-Busch and Budějovický - that provided "provisional protection" to trademark applicants and authorized them to bring infringement actions on the basis of that protection.
155. Id.
156. See Anheuser-Busch, 44 Eur. H.R. Rep. 42 at 854-55 (Chamber);
157. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 843 (Grand Chamber).
158. Anheuser-Busch, 44 Eur. H.R. Rep. 42 at 858 (Chamber).
159. Id. at 857.
160. Id. at 858.
161. Id.
162. Id.
163. Id.
164. Id. at 858-60 (Costa & Cabral Barreto, JJ., dissenting).
165. Id. at 859.
166. Id.
167. Id. at 859-60.
168. See supra Part III (introductory paragraph).
169. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 850 (Grand Chamber 2007).
170. Id.
171. Id.
172. Id.
173. Id. The majority's holding logically implies that trademark applications are "existing possessions," the only other temporal category of property rights protected by Article 1.
174. See supra Part II.B. It is uncertain, however, whether the Grand Chamber placed trademark applications in this category, since it stated only that such applications "[give] rise to interests of a proprietary nature."
175. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 850 (Grand Chamber). In contrast to the majority, the concurrence and dissent analyzed trademark applications under the rubric of "legitimate expectations."
176. Id. at 853 (Steiner & Hajiyev, JJ., concurring), 856 (Caflisch & Cabral Barreto, JJ., dissenting).
177. See Robert Harmsen, The European Convention on Human Rights After Enlargement, 5 INT'L J. HUM. RTS. 18, 32-33 (2001) (discussing ECHR's common practice of issuing narrow, fact-specific rulings rather than broad statements of principle). The most recent past President of the ECHR has urged the Court to abandon this practice.
178. See Luzius Wildhaber, A Constitutional Future fir the European Court of Human Rights, 23 HUM. RTS. L.J. 161, 162-63 (2002).
179. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 850 (Grand Chamber) (emphasis added).
180. The fact that the ECHR did not reference Anheuser-Busch's attempt to license its trademark application to Budějovický Budvar in its analysis of the scope of Article 1 supports this view. See id. at 834 and 849.
181. See, eg., European Patent Convention, Oct. 5, 1973, 1065 U.N.T.S. 199, art. 67 (defining the rights conferred by a European patent application after publication) and arts. 71-73 (describing a European patent application as "an object of property" and enumerating rights of applicants including transfer, assignment, and licensing); Council Regulation (EC) No. 6/2002, Community Designs, 2002 O.J. (L 3) 1, 5, available at http://oami.europa.eu/en/design/pdf/reg2002_6.pdf, art. 12 (term of protection exists from the date of filing of an application to register a Community design) and art. 34 (describing an "application for a registered Community design as an object of property").
182. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 850 (Grand Chamber).
183. Id.
184. See Council Directive (EC) 89/104, arts. 3-4, 1989 O.J. (L 40) 1 (setting forth mandatory and permissive grounds for denying registration of a trademark).
185. Compare Anheuser-Busch's claim that during the domestic litigation, "there had never been any question of a risk of confusion with the Czech company's products," Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 44 Eur. H.R. Rep. 42 [846], 854 (Chamber 2007) (judgment of Oct. 11, 2005) with Portugal's response that the Supreme Court considered both the risk of confusion and the 1986 bilateral agreement in refusing to register the American company's trademark, id. at 855.
186. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 850 (Grand Chamber).
187. See infra notes 188, 191-192 and accompanying text.
188. The ECHR and the European Commission have also indirectly considered the interference issue in two other categories of Article 1 cases. In the first category, the tribunals decline to review a claim under Article 1 if they have already examined it under another provision of the Convention, See British Am. Tobacco Co. Ltd. v. Netherlands, App. No. 19589/92, 331 Eur. Ct. H.R. (ser. A) at 29 (1995) (refusing to consider Article 1 claim challenging denial of patent application where claim was "in substance identical to that already examined and rejected in the context of complainant's Article 6 challenge to the independence and impartiality of the Appeals Division of the Dutch Patent Office);
189. Dimitrievski v. The Former Yugoslav Republic of Macedonia, App. No. 26602/02, para. 7 (2006) (admissibility decision) (refusing to examine alleged violation of right of property where the complaint under Article 1 "relate[d] solely to the outcome of the proceedings" and was "in fact a restatement of the complaints under Article 6"). A second category of indirect interference has arisen in challenges to the authority of the European Patent Office ("EPO") to review patent applications and register patents. Inventors file applications directly with the EPO, whose examiners decide whether the applications meet the eligibility requirements of the European Patent Convention ("EPC"). If the EPO grants the application, the patent is automatically protected in all states that have ratified the EPC. National industrial property offices and national courts may not deny a patent that the EPO has granted nor grant a patent that the EPO has denied. In four cases, inventors whose patent applications were rejected challenged the state's delegation of decisionmaking authority to the EPO. In each case, the European Commission rejected the challenge. The Commission highlighted the numerous benefits of the EPO's centralized review and registration system and emphasized the EPCs "procedural safeguards," including an appeals procedure staffed by independent legal and technical experts.
190. In light of these "equivalent protections" for the rights of patent applicants, the states' delegation of authoriry to the EPO to review patent applications and register patents did not interfere with a possession in a manner proscribed by Article 1. Lenzing AG v. Germany, App. No. 39025/97, para. 20 (1998) (admissibility decision);
191. Lenzing AG v. United Kingdom, App. No. 38817/97, 94 Eur. Comm'n H.R. Dec. & Rep. 136, 144 (1998) (admissibility decision);
192. Heinz v. Contracting States also Parties to the European Patent Convention, App. No. 21090/92, 76 Eur. Comm'n H.R. Dec. & Rep. 125 (1994) (admissibility decision);
193. Reber v. Germany, App. No. 27410/95, 22 Eur. H.R. Rep. 98 (1996) (admissibility decision). The ECHR has never addressed this issue, although it recently cited the Commission's case law with approval.
194. See Bosphnrus Hava Yollari Turízm ve Tícaret Anoním Şirketí v. Ireland, App. No. 45036/98, 42 Eur. H.R. Rep. 1 [1], 32, 45 (Grand Chamber 2006) (judgment of June 30, 2005) (analyzing the delegation of authority by the European Convention's member states to the European Union).
195. See supra Part II.C.
196. Anheuser-Busch, 44 Eur. H.R. Rep. 42 at 859 (Chamber) (Costa & Cabral Barreto, JJ., dissenting). The two judges who dissented from the Grand Chamber's judgment did not discuss whether Portugal's refusal to give priority to the Budweiser trademark was a control of a possession or a more substantial deprivation of property. They merely concluded that, by applying the 1986 bilateral agreement retroactively, "the Portuguese authorities have objectively caused damage to the applicant company."
197. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 857 (Grand Chamber) (Caflisch & Cabral Barreto, JJ., dissenting).
198. Smith Kline & French Lab. Ltd. v. Netherlands, App. No. 12633/87, 66 Eur. Comm'n H.R. Dec. & Rep. 70, 79 (1990).
199. Id.
200. Id. The Commission's conclusion raises the question of whether such a control is justified. I address this issue below.
201. See infra Part III.C.
202. Reynbakh v. Russia, App. No. 23405/03, ¶ 18 (2005), Only one decision applies this principle to intellectual property. See Mihǎilescu v. Romania, App. No. 47748/99, paras. 22-28 (2003) (admissibility decision) (dismissing Article 1 claim by patent owner who was unable to enforce a domestic court damage award against a state enterprise which had been privatized and later declared bankrupt).
203. See S.Ö. v. Turkey, App. No. 31138/96, para. 20 (1999) (admissibility decision) (stating that a transfer of property ownership was "enforced by a court order and thus by an act of a State organ").
204. App. No. 24563/94 (1998) (admissibility decision).
205. Id. at paras. 7-17, 21.
206. Id at para. 38.
207. Id. at para. 39. The Turkish court held that the magazine publisher owned cartoons which had been "published or which were unpublished but held in the archives of the magazines." But it also held that the artists "could continue to draw the same characters ... in association with other subjects and stories [and] in other magazines or newspapers."
208. Id.
209. Id at para. 40.
210. See Melnychuk v. Ukraine, App. No. 28743/03 (2005) (admissibility decision).
211. Id. at para. 7.
212. Id. at para. 9.
213. Id. at para. 30.
214. Id at para. 31.
215. This contrasts with many provisions of EC law, which have both a "vertical effect (between the State and the individual), [and] a horizontal effect (between individuals)." Bosphorus Hava Yollari Turízm ve Tícaret Anoním Şírketí v. Ireland, App. No. 45036/98, 42 Eur. H.R. Rep. 1 [1], 28 (Grand Chamber 2006) (judgment of June 30, 2005) (internal quotations omitted). It bears noting, however, that some national court decisions have given horizontal effect to certain provisions of the European Convention. See Geiger, Constitutionalising Intellectual Property Law, supra note 15, at 384.
216. Voyager Ltd. v. Turkey, App. No. 35045/97, para. 104 (2001) (admissibility decision),
217. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 852 (Grand Chamber 2007).
218. See supra Part III.A.2.a.
219. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 851 (Grand Chamber).
220. Id. at 852.
221. See Kopecký v. Slovakia, App. No. 44912/98, 2004-IX Eur. Ct. H.R. 125, 142-43 (Grand Chamber 2004) (reviewing case law).
222. Anheuser-Busch, 45 Eur. H.R. Rep. 36 at 851 (Grand Chamber)
223. (citing Lecarpentier v. France, App. No. 67847/01, ¶¶ 48, 51, 52 (2006);
224. Cabourdin v. France, App. No. 60796/00, ¶¶ 28-30 (2006)).
225. Id. at 851.
226. Id. at 852.
227. See id.
228. Id at 851.
229. See infra Part IV.B.
230. See supra Part II.D.
231. See ÇOBAN, supra note 26, at 195-210.
232. See supra Part III.B.1.
233. Smith Kline & French Lab. Ltd. v. Netherlands, App. No. 12633/87, 66 Eur. Comm'n H.R. Dec. Sc Rep. 70, 72-73 (1990) (admissibility decision).
234. Id. at 80.
235. Id.
236. The Commission's decision in Smith Kline was its first analysis of an intellectual property dispute under Article 1, See supra Part III.B.1 and note 54.
237. See Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 44 Eur. H.R. Rep, 42 [846], 858-59 (Chamber 2007) (judgment of Oct. 11, 2005) (Costa & Cabral Barreto, JJ., dissenting).
238. See European Convention, supra note 2, arts. 8(2), 9(2), 10(2), 11(2) (all recognizing "the rights and freedoms of others" as a legitimate basis for restricting rights).
239. Smith Kline & French Lab, Ltd. v, Netherlands, App. No. 12633/87, 66 Eur. Comm'n H.R. Dec. & Rep. 70, 78 (1990) (admissibility decision).
240. Smith Kline & French Lab. v. Netherlands, App. No. 12633/87, f 11 (1991) (Commission Report). This revision was later enacted. See Patents Act of the Kingdom 1995, art. 57.4, Stb. 1995 No. 51 (Dutch Patent Act of 1995), available at http://www.wipo.int/clea/docs_new/en/nl/nl020en.html#JD_ NL020_57_4 (authorizing dependent patent compulsory licenses only where "the patent for which the license is requested represents a considerable advance"). This clause implements a provision of TRIPs that requires the dependent patent to contain "a considerable technical advance of considerable economic significance" in relation to the dominant patent.
241. Id. at n.4 (paraphrasing TRIPs, supra note 89, art. 31(1)(i)).
242. Smith Kline, App. No. 12633/87, ¶ 3.
243. Id. Following the Commission's abolition in 1998, the ECHR performs this settlement review function and applies the identical legal standard.
244. See European Convention, supra note 2, art. 38(1)(b).
245. See supra notes 23-25 and accompanying text (analyzing the ECHR's interpretive methodologies).
246. See generally JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1990).
247. For a comprehensive review of the literature, see ÇOBAN, supra note 26, at 35-77.
248. See supra Part II.A.
249. See EMBERLAND, supra note 23, at 44.
250. Protocol 1, supra note 5, art. 1.
251. Edwards v. Malta, App. No. 17647/04, ¶ 60 (2006);
252. see also Zlínsat, Spol. S R.O. v. Bulgaria, App. No. 57785/00, ¶ 98 (2006) ("The requirement of lawfulness . . . means not only compliance with the relevant provisions of domestic law, but also compatibility with the rule of law.").
253. EMBERLAND, supra note 23, at 46 ("When the Court invokes the rule of law as an interpretive argument, it emphasizes its capacity to prevent governmental arbitrariness and the excessive wielding of public power.").
254. See id at 44 ("The rule of law also helps explain why corporate persons enjoy ECHR protection.").
255. See ÇOBAN, supra note 26, at 196-97 (reviewing case law).
256. Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 851 (Grand Chamber 2007) (emphasis added).
257. Melnychuk v. Ukraine, App. No. 28743/03, para. 28 (2005) (admissibility decision).
258. See Brumǎrescu v. Romania, App. No. 28342/95, 1999-VII Eur. Ct. H.R. 201.
259. Zlínsat, Spol. S R.O. v. Bulgaria, App. No. 57785/00, ¶ 23 (2006).
260. See Capital Bank AD v. Bulgaria, App. No. 49429/99, 44 Eur. H.R. Rep. 48 [952], 984-85 (2007) (judgment of Nov. 24, 2005).
261. Chebotarev v. Russia, App. No. 23795/02, ¶ 6 (2006).
262. Iatridis v. Greece, App. No. 31107/96, 30 Eur. H.R. Rep. 97, 116 (Grand Chamber 2000) (judgment of Mar. 25, 1999).
263. Cf. Mihǎilescu v. Romania, App. No. 47748/99, paras. 22-28 (2003) (admissibility decision) (holding that inability to execute a judgment against a state-owned enterprise that had unilaterally reduced royalties paid to a patent owner did not violate Article 1 because the state only owned a minority stake in the enterprise and thus was not a state actor).
264. Cf. Hiro Balani v. Spain, App. No. 18064/91, 303 Eur. Ct. H.R. 23 (ser. A) at 30 (1995) (finding a violation of the right to a fair hearing where the Supreme Court failed to consider a trademark owner's argument that its mark had priority over the trade name of a competitor that had successfully applied to cancel the mark).
265. See Stele v. Slovenia, App. No. 6549/02, para. 13 (2006) (friendly settlement) (approving the settlement of a complaint alleging a violation of Article 1 by a domestic court for failing to issue a judgment in a patent infringement action for nearly 11 years).
266. See, e.g., Capital Bank AD v. Bulgaria, App. No. 49429/99, 44 Eur. H.R. Rep. 48 [952], 984 (2007) (judgment of Nov. 24, 2005) (stating that although Article 1 "contains no explicit procedural requirements," its provisions nevertheless imply that "any interference with the peaceful enjoyment of possessions must be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision.").
267. Mark A. Lemley & Carl Shapiro, Probabilistic Patents, J. ECON. PERSP., Spring 2005, at 76.
268. Id. at 75.
269. For summaries of such government use exemptions relating to copyright, see, for example, 2 MELVILLE B. NIMMER & PAUL E. GELLER, INTERNATIONAL COPYRIGHT LAW AND PRACTICE, GER § 8(2)(d)(iii) (2005) (Germany);
270. id. ITA § 8(2)(b)(iii) (Italy);
271. id. POL § 8(2)(c) (Poland);
272. id. SWE § 8(2)(d)(iii) (Sweden);
273. id UK § 8(2)(c) (United Kingdom): LiLan Ren, Note, A Comparison of 28 U.S.C. § 1498(a) and Foreign Statutes and an Analysis of § 1498(a)'s Compliance with TRIPS, 41 HOUS. L. REV. 1659, 1664-69 (2005) (analyzing foreign statutes authorizing government use of patented inventions).
274. See Ren, supra note 193, at 1666, 1669 (reviewing European laws that provide for government use of patented inventions for purposes of, inter alia, national defense and producing or supplying drugs and medications).
275. Cf. De Graffenried v. United States, 29 Fed. Cl. 384, 387 (1993) (stating that a patent owner's rights "do not include the right to exclude the government from using his or her patented invention" because "the statutory framework that defines a patent owner's rights gives the government the authority to use all patented inventions").
276. See supra notes 15-16 and accompanying text.
277. See Sovtransavto Holding v. Ukraine, App. No. 48553/99, 38 Eur. H.R. Rep. 44 [911], 938 (2004);
278. see also Broniowski v. Poland, 2004-V Eur. Ct. H.R. 1, 56 (Grand Chamber).
279. See MOWBRAY, supra note 24;
280. see also CLARE OVEY & ROBIN WHITE, JACOBS AND WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 51-52 (4th ed. 2006).
281. ÇOBAN, supra note 26, at 164.
282. See Immobiliare Saffi v. Italy, App. No. 22774/93, 1999-V Eur. Ct. H.R. 73, 90-92 (Grand Chamber).
283. Sovtransavto Holding, 38 Eur. H.R. Rep. 44 at 916 ("[P]ositive obligations may entail certain measures necessary to protect the right of property even in cases involving litigation between individuals or companies.") (internal citation omitted).
284. See Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830], 851 (Grand Chamber 2007) ("[T]he State is under an obligation to afford the parties to the dispute judicial procedures which offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly in the light of the applicable law.").
285. As a formal matter, TRIPs protects only foreign intellectual property owners, whereas Article 1 protects the owners of all possessions regardless of nationality. As a political and practical matter, however, states rarely protect foreign intellectual property owners without extending equivalent protections to domestic creators, innovators, and businesses. See Helfer, Adjudicating Copyright Claims, supra note 1, at 367 & n.38, As a result, the formal differences in scope between the two treaties are unlikely to deter the ECHR from consulting TRIPs when fashioning Article 1 positive obligations.
286. TRIPs, supra note 89, arts. 41(1)-(2).
287. Id. arts. 42-51, 61. These provisions have resulted in substantial changes to domestic enforcement procedures in many countries.
288. See Jerome H. Reichman, Enforcing the Enforcement Procedures of the TRIPS Agreement, 37 VA. J. INT'L L. 335 (1997).
289. TRIPs, supra note 89, art. 41(5).
290. For a detailed analysis of how WTO dispute settlement panels might draw on ECHR jurisprudence to interpret TRIPs' enforcement obligations, see Helfer, Adjudicating Copyright Claims, supra note 1, at 416-20.
291. See World Trade Organization, Understanding the WTO: The Organization-Members and Observers, http://www.wto.org/english/thewto_e/ whatis_e/tif_e/org6_e.htm (last visited Nov. 14, 2007); Council of Europe, Member States of the Convention for the Protection of Human Rights and Fundamental Freedoms, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp? NT=005&CM=8&DF= 2/23/2007&CL=ENG (last visited Nov. 14, 2007). The eight European Convention members who have not yet ratified the WTO Agreement are Andorra, Azerbaijan, Bosnia and Herzegovina, Montenegro, the Russian Federation, San Marino, Serbia, and Ukraine.
292. Id.
293. Guichard v. France, App. No. 56838/00, 2003-X Eur. Ct. H.R. 419, 431 (admissibility decision);
294. see also Paradis v. Germany, App. No. 4783/03 (2004) (judgment of May 15, 2003) (admissibility decision).
295. The case for using TRIPs as a benchmark is strengthened by the fact that both treaties require states to use practical effective enforcement mechanisms to protect intellectual property rights. Compare TRIPs, supra note 89, art. 41(1) (TRIPs enforcement provisions aim "to permit effective action against any act of infringement of intellectual property rights"), with Artico v. Italy, App. No. 6694/74, ¶ 33 (1980) (holding that "the Convention is intended to guarantee . . . rights that are practical and effective").
296. See Alastair Mowbray, The Creativity of the European Court of Human Rights, 5 HUM. RTS. L. REV. 57, 60-71 (2005).
297. Özgür Gündem v. Turkey, App. No. 23144/93, 2000-III Eur. Ct. H.R. 1, 21.
298. See supra Part III.B.2.b.
299. Cf. eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006) (emphasizing the discretionary nature of injunctive relief in patent infringement cases).
300. See INT'L INTELL. PROP. ALLIANCE, COPYRIGHT ENFORCEMENT UNDER THE TRIPs AGREEMENT 5 (2004) (summarizing in chart form the TRIPs deficiencies found in national copyright laws and enforcement practices), available at http://www.iipa.com/rbi/2004_Oct19_TRIPS.pdf.
301. See Notification of Mutually Agreed Solution, Denmark-Measures Affecting the Enforcement of Intellectual Property Rights, WT/DS83/2 (June 13, 2001);
302. Notification of Mutually Agreed Solution, Sweden-Measures Affecting the Enforcement of Intellectual Property Rights, WT/DS86/2 (Dec. 11, 1998).
303. See INT'L INTELL. PROP. ALLIANCE, supra note 214, at 3.
304. See Ed Bates, Supervision of the Execution of Judgments Delivered by the European Court of Human Rights: The Challenges Facing the Committee of Ministers, in EUROPEAN COURT OF HUMAN RIGHTS: REMEDIES AND EXECUTION OF JUDGMENTS 49, 84-96 (Theodora Christou Sc Juan Pablo Raymond eds., 2005) [hereinafter ECHR REMEDIES] (describing systemic and structural problems, including lack of resources, infrastructure, and slow or corrupt domestic judicial processes, leading to widespread violations of the European Convention in Turkey and in several Eastern European countries).
305. According to a recent report, the deficiencies include the "lack of an effective and deterrent criminal enforcement system ..., the lack of effective plant inspection [for optical media production and distribution] ... ; the lack of civil ex parte search procedures; an extremely porous border; delays in criminal prosecutions and adjudications; and infrequent destruction of seized pirate goods." OFFICE OF U.S. TRADE REPRESENTATIVE, 2005 SPECIAL 301 REPORT 32 (2005), available at http://www.ustr.gov/ assets/Document_Library/ Reports_Publications/2005/2005_Special_301/asset_upload_filel95_7636. pdf;
306. see also id at 24 (highlighting the need for Ukraine to "deter[ ] optical media piracy through adequate enforcement"), 33 (highlighting "concerns over patent protection, copyright piracy, trademark counterfeiting, and IPR enforcement problems" in Turkey). Not coincidentally, both Russia and Ukraine have yet to be admitted to the WTO, in part because of their poor record of enforcing intellectual property rights.
307. See Gary G. Yerkey, Russia Needs to Do 'Much More' Before U.S. Will Sign Off On WTO Accession Agreement, 6 WTO REP. (BNA) No. 184 (Sept. 22, 2006).
308. Broniowski v. Poland, App. No. 31443/96, 2004-V Eur. Ct. H.R. 1, 76 (Grand Chamber). The Article 1 violations in this case concerned the state's failure to meet its positive obligations and its interference with property rights. Id. at 57.
309. Broniowski v. Poland, App. No. 31443/96, 43 Eur. H.R. Rep. 1 [1], 19-20 (Grand Chamber 2006) (judgment of Sept. 28, 2005) (friendly settlement).
310. See Philip Leach, Beyond the Bug River-A New Daum for Redress Before the European Court of Human Rights, 10 EUR. HUM. RTS. L, REV. 148 (2005). The Court has since issued a pilot judgment involving an even larger number of property claimants. See Hutten-Czapska v. Poland, App. No. 35014/97,45 Eur. H.R. Rep. 4 [52] (Grand Chamber 2007) (judgment of June 19, 2006) (holding that domestic legislation which prevented 100,000 landlords from raising rents to cover property maintenance for between 600,000 and 900,000 tenants violated Article 1).
311. TRIPs, supra note 89, art. 41(5).
312. See Alan O. Sykes, Public Versus Private Enforcement of International Economic Law: Standing and Remedy, 34 J. LEGAL STUD. 631 (2005) (analyzing "political filters" that allow states to limit WTO litigation to disputes that produce joint welfare gains). In the intellectual property context, governments litigate only a subset of TRIPs disputes that rights holders bring to their attention. In some cases, a state may decline to file a complaint because it fears a WTO countersuit. In others, it may refuse to do so because the probability of success is low or because victory will only marginally benefit domestic industries. In still others, geostrategic factors unrelated to trade or intellectual property may lead governments to refrain from litigating. In each instance, the "decision whether to challenge a practice of a member may be made only by another member government, not by the private party who is directly aggrieved by that practice."
313. Judith H. Bello, Some Practical Observations About WTO Settlement of Intellectual Property Disputes, 37 VA. J. INT'L L, 357, 358 (1997).
314. When governments do file TRIPs complaints, they often prefer a politically palatable settlement or an ambiguous panel decision to a definitive WTO Appellate Body ruling. Such compromises allow both sides to claim victory and resolve the litigation in ways that both states are willing to accept. See Notification of a Mutually Satisfactory Temporary Arrangement, United States-Section 110(5) of the US Copyright Act, WT/DS160/23 (June 26, 2003) (notifying WTO of lump-sum payment by United States to the EC to settle TRIPs copyright dispute in which the EC prevailed);
315. see also Eva Gutierrez, Geographical Indicators: A Unique European Perspective on Intellectual Property, 29 HASTINGS INT'L & COMP. L. REV. 29, 48-49 (2005) (stating that both the United States and the EC claimed victory and did not appeal a WTO panel decision partially invalidating EC protection of GIs).
316. See Leach, supra note 221, at 149-51 (describing evolution of ECHR's approach to remedies).
317. European Convention, supra note 2, art. 41.
318. Marius Emberland, Compensating Companies for Non-Pecuniary Damage: Comingersoll S.A. v. Portugal and the Ambivalent Expansion of the ECHR Scope, 74 BRIT, Y.B. INT'L L. 409, 412 (2003);
319. see also ÇOBAN, supra note 26, at 228. In addition, the ECHR has "awarded monetary compensation for moral injury in almost all of the property cases where it found [a] violation of Article 1,
320. Id. at 230. Moral damage suffered by corporations includes harm to business reputation, uncertainty in future planning, disruption in management, and inconvenience to directors and officers.
321. EMBERLAND, supra note 23, at 132.
322. Bates, supra note 217, at 74 ("{I]n the vast majority of instances settlement is made, at the latest, within six months of the date due for payment expired.").
323. See Hutten-Czapska v. Poland, App. No. 35014/97, 45 Eur. H.R. Rep. 4 [52], 139 (Grand Chamber 2007) (judgment of June 19, 2006) (Zupančič, J., concurring in part and dissenting in part) (stating that judgment finding a violation of Article 1 in a pilot judgment case "bind[s] the state to indemnify all similarly situated rights holders").
324. See supra Part II.D.
325. European Convention, supra note 2, art. 10(1) ("Everyone has the right to freedom of expression. This right shall include freedom to . . . receive and impart information and ideas without interference by public authority and regardless of frontiers,");
326. id. art. 8(1) ("Everyone has the right to respect for his private and family life, his home and his correspondence.").
327. See Anheuser-Busch Inc. v. Portugal, App. No. 73049/01, 45 Eur. H.R. Rep. 36 [830] (Grand Chamber 2007);
328. Dima v. Romania, App. No. 58472/00, parai. 87-92 (2005) (admissibility decision).
329. Urheberrechtgesetz-UrhG. Bundesgesetz über das Urheberrecht an Werken der Literatur und der Kunst und über verwandte Schutzrechte [UrhG] [Federal Law on Copyright in Works of Literature and Art and on Related Rights] Bürgerliches Gesetzbuch [BGB1] No. 111/1936, § 78 (1) (Austria) ("Portraits of persons may not be exhibited or otherwise distributed in a manner which would make them available to the public if legitimate interests of the person portrayed, or, should he have died without authorizing or ordering the publication of the portrait, of a close relative would be prejudiced.").
330. See, e.g., Österreichischer Rundfunk v. Austria, App. No. 35841/02, ¶¶ 72-73 (2006);
331. Verlag-sgruppe News GmbH v. Austria (No. 2), App. No. 10520/02, ¶ 29 (2006);
332. Krone Verlags GmbH & Co KG v. Austria, App. No. 34315/96, 36 Eur. H.R. Rep. 57 [10593, 1066 (2003) (judgment of Feb, 26, 2002);
333. News Verlags GmbH & CoKG v. Austria, 2000-1 Eur. Ct. H.R. 157, 174-75.
334. Verlagsgruppe News GmbH, App. No. 10520/02, ¶ 29.
335. See News Verlags GmbH, 2000-1 Eur. Ct. H.R. at 175-77;
336. Österreichischer Rundfunk, App. No. 35841/02, ¶¶ 62-73;
337. Verlagsgruppe News GmbH, App. No. 10520/02, ¶¶ 34-44.
338. Nothing in Article 1 or ECHR case law prohibits governments from limiting diminutions of intellectual property protection standards to inventions, creations, and signs that have yet to be created. In practice, however, states rarely limit protection in this way.
339. See Rochelle Cooper Dreyfuss, Patents and Human Rights: Where Is the Paradox?, Molengrafica Series, at 9 n.43 (2006) (unpublished), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 929498 (arguing against protecting patents as human rights but stating that "there is a grey area where investments made in reliance on a particular scheme of patent protection are frustrated by a change in regime; whether the change amounts to a taking of property is arguably a hard question").
340. See id at 9-12.
341. See Geertruii Van Overwalle, The Implementation of the Biotechnology Directive in Belgium and Its After-Effects, 37 INT'L REV. INTELL. PROP. & COMP. L. 889, 905-18 (2006) (describing the scope of the exemption and compulsory license in Belgium).
342. See R. Anthony Reese, The New Property, 85 TAX. L. REV. 585, 608 (2007). The law provides a 50-year transition period so that works unpublished in that year date will be protected until the end of 2039.
343. Council Directive 2001/29/EC, pmbl., 2001 O.J. (L 167) 10, 11. The Act of May 22, 2005 amended Belgium's copyright legislation to implement the directive. See 1 MELVILLE B. NIMMER & PAUL E. GELLER, INTERNATIONAL COPYRIGHT LAW AND PRACTICE, BEL § 1 (BELGIUM). THE Amendment of Sept. 10, 2003 implemented the directive in Germany.
344. See NIMMER & GELLER, supra note 193, GER § 1 (GERMANY).
345. Christophe Geiger, Copyright and Free Access to Information: For a Fair Balance of Interests in a Globalised World, 28 EUR. INTELL. PROP. REV. 366, 370 & n.44 (2006). Not all European countries have successfully limited intellectual property protection standards. In France, for example, a draft law implementing the EC Directive initially included a provision requiring Apple Computer to license its FairPlay digital rights management for use in devices that compete with its highly successful iPod. The Constitutional Council declared the provision to violate the right of property in the French Constitution.
346. Crampton, supra note 20, at C9;
347. Charles Jade, Parts of French "iPod Law" Ruled Unconstitutional, ARS TECHNICA, July 29, 2006, http://arstechnica.com/news.ars/post/200607 29-7380.html. French courts are widely known for their strong support for authors' rights.
348. Hugenholtz, supra note 22, at 357. A similar law in a different jurisdiction might well survive a constitutional challenge, paving the way for rights holders to file a complaint with the ECHR.
349. See supra Parts II.D & III.C.
350. For example, Article 13 of TRIPs confines exceptions and limitations to copyright to "certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." TRIPs, supra note 89, art. 13;
351. see also id art. 17 (trademark), art. 30 (patent).
352. See Sykes, supra note 223 (discussing how the restriction of judicial access to states functions as a political filter on WTO dispute settlement).
353. See Geiger, Constitutionalising Intellectual Property Law, supra note 15, at 394-96 (discussing court decisions from Austria, the Netherlands, and Germany in which freedom of expression and the public's right to information prevailed over claims for protection by copyright and trademark owners).
354. Hugenholtz, supra note 22, at 362.
355. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR].
356. International Covenant on Economic, Social and Cultural Rights, arts, 15(1)(b), 15(1)(c), Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter (CBSCR].
357. UDHR, supra note 249, art. 27(2) ("Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author.");
358. ICESCR, supra note 250, art. 15(1)(c) (recognizing the same right in nearly identical language).
359. ICESCR Article 15 recognizes "the right of everyone" to "enjoy the benefits of scientific progress and its applications," and obligates states to take steps "necessary for the conservation, the development and the diffusion of science and culture." ICESCR, supra note 250, arts.
360. 15(1)(b), 15(2). Similarly, the UDHR protects the right of everyone "freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." UDHR, supra note 249, art. 27(1).
361. The above statement does not imply that the authors' rights provisions of the ICESCR and UDHR provide a fully coherent framework for a human rights-inspired conception of intellectual property. To the contrary, such a framework remains to be specified through, for example, additional general comments of the ICESCR Committee, the decisions of national courts, and the writing of commentators.
362. See Dreyfuss, supra note 238, at 13-18 (critiquing human rights approaches to intellectual property as ignoring utilitarian concerns).
363. But see Geiger, Constitutionalising Intellectual Property Law, supra note 15, at 388 (arguing that human rights "are effective tools to guarantee a balanced development and understanding of IP rights and a remedy for the overprotective tendencies of lobby-driven legislation").
364. See, e.g., T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 972-83 (1987) (critiquing case-by-case or ad hoc balancing standards in constitutional adjudication). The difficulties with balancing tests include determining which factors a court should weigh against each other and whether those factors can be measured on the same scale.
365. More generally, balancing "expands judicial discretion [and] frees it substantially from the need to justify and persuade. . . . [I]t gives a view of judicial review that is intuitional, if not incomprehensible." Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 COLUM. L. REV. 1022, 1047-49 (1978).
366. European Convention, supra note 2, art. 46(1) ("The High Contracting Parties undertake to abide by the final judgment of the Court in a case to which they are parties.").
367. See, e.g., Council of Europe, Committee of Ministers, Judgments by the European Court of Human Rights, ResDH(2006)27E (June 7, 2006), available at https://wcd.coe.int/ViewDoc.jsp?id=1008 059&Site = CM&BackColorInternet = 9999CC&BackColorIntranet = FFBB55& BackColorLogged = FF AC75 (quoting the government of Greece's statement that "the Convention and the Court's case law enjoy direct effect in Greek law," and citing a 2005 Court of Cassation decision that "recognised and stressed the supra-statutory force of Article 1 of Protocol No. 1 to the Convention");
368. see also Frank Hoffmeister, Germany: Status of European Convention on Human Rights in Domestic Law, A INT'L J. CONST. L. 722, 726-28 (2006) (reviewing the legal status of the European Convention in member states).
369. See, e.g., Regione Autonoma Friuli-Venezia Giulia v. Ministero delle Politiche Agricole e Forestali, 2005 E.C.R. 1-3785, ¶ 125 (referencing the "case-law of the European Court of Human Rights" as establishing the standard for assessing whether government controls on the use of property are compatible with European Community law);
370. Laserdisken ApS v. Kulturministeriet, 2006 E.C.R. I-08089, ¶ 65 (stating that "intellectual property rights . . . form part of the right to property").
371. See Tom Barkuysen & Michel L. van Emmerik, A Comparative View on the Execution of Judgments of the European Court of Human Rights 1, 15, 19, in ECHR REMEDIES, supra note 217.
372. See id. at 12 (describing Dutch legislative proposals that were modified to comply with Article 1 and stating that "in recent years the right to property, contained in Article 1 . . . seems to have been discovered in legal practice" and "is gaining more attention in the legislative process").