The European Court of Human Rights and Intellectual Property: Still Waiting for the New Innovation Frontier?

Abstract This article examines the influence of the European Court of Human Rights (ECtHR) on intellectual property (IP) law through human rights methodologies. Although Professor Laurence Helfer identified the ECtHR in 2008 as a potential innovation frontier in Europe, some might find it debatable whether this prediction has been fully realised. Scholarly attention has instead focused largely on the jurisprudence of the Court of Justice of the European Union (CJEU), which has come to dominate debates on the relationship between IP and human rights in Europe. Against this backdrop, this article assesses the ECtHR’s actual contribution to, and impact on, human rights-based IP adjudication. Following a brief introduction (I.), it explores reasons for the relative marginalisation of ECtHR case law in European IP discourse (II.). It then analyses the Strasbourg Court’s substantive contribution, arguing that its jurisprudence has played – and continues to play – a significant role in shaping European IP norms, despite limited engagement from the IP community (III.). This analysis focuses first on the Court’s approaches to conflicts between IP protection and freedom of expression (III.1.), and then on its recognition of IP rights as part of the broader human right to property, an area that has expanded notably in recent years (III.2.). The article concludes that the ECtHR has already become a significant – albeit often underappreciated – force in the evolution of IP law in Europe, operating quietly but far more meaningfully than is generally acknowledged (IV.).