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
Highlights
European Convention on Human Rights covers rather wide range of fundamental rights
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
Making conclusions we should admit that insignificance of number of cases, in which ECHR had been considering the matters of intellectual property, undoubtedly, does not allow resolving many questions emerged in the sphere of legal protection and defense of rights for results of intellectual activity and different designations
Summary
European Convention on Human Rights (hereinafter referred to as “Convention”) covers rather wide range of fundamental rights. It is obvious that named property right is not covered by the term of “property right”, as well as it is not being intellectual right (WIPO document WIPO/INT/02)), it is the economical value of this right that allows referring it to “possessions” in terms of article 1 of Protocol No 1 to Convention Another example of wide interpretation by ECHR of “possessions” term is the SC Editura Orizanturi SRL v. In that connection in the Strategy on the effective implementation of the European Charter of Fundamental Rights (COM (2010) 573 final) there is an emphasis on the necessity of solving questions of intellectual property Along with this not always the results of creative self-expression can get legal protection and defense as “possessions” of interested person: such a legal protection can be not performed, for example, in case if in accordance with national legislation such results are not referred to the objects of intellectual property. Can one protect intellectual property that had not got legal protection in accordance with national legislation? What mechanisms of Convention can be used for defense of creativity results in situations, when the autonomic concept of property developed by ECHR can not be applied
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