The European Court of Human Rights : An Unlikely Forum for the Enforcement of Intellectual Property Rights

Why are so few intellectual property right claims brought to the ECtHR? Why would aggrieved individuals or corporations seek enforcement of their intellectual property rights in the European Court of Human Rights? What remedies could they secure and how do these remedies compare to those available in national courts? The analysis falls in three parts. The first part examines the contested origins of the right to property in the ECHR and the paradoxical conferral of property rights to ‘legal persons’ in Article 1 Protocol 1 to the ECHR. The second part sets out the constitutional constraints on the exercise of the Court’s jurisdiction, notably the doctrine of the margin of appreciation and the principle of subsidiarity and discusses their impact on the Court’s adjudication of IP rights. The third part reviews of Court’s case law on IP rights drawing attention to the equitable nature of the Court’s assessment of damages. Combined together, these considerations explain both the very low volume of IPR applications and why the Court is likely to remain an unlikely forum for the enforcement of IPRs in the future