Christophe Geiger

  • Joined: April 26, 2012
  • Articles: 23

Excluding Intellectual Property from Bilateral Trade and Investment Agreements: A Lesson from the Global Health Crisis

[Christophe Geiger] Abstract: This chapter critically analyses the inclusion of intellectual property (IP) in the investment chapters of free trade agreements and bilateral investment treaties as well as their submission to their related investor state dispute settlement (ISDS). It argues that these developments pose a serious threat to a balanced and ethical innovation system. In part this is because when regulating IP to foster non-economic interests, the possibility of ISDS creates uncertainty about the ability of states to protect human rights and matters of public interest by limiting IP rights, even when such action is perfectly legitimated by the international IP system and its flexibilities.

Conceptualizing a ‘Right to Research’ and Its Implications for Copyright Law: An International and European Perspective

[Christophe Geiger and Bernd Justin Jütte] Copyright, at international, European and national levels, does not provide a legal framework that prioritizes enabling and incentivizing research using protected works and information to the extent necessary and desirable in a digital, data-driven society in order to build a sustainable ecosystem for innovation and creativity. While small progress has been made, for example with the recent introduction of specific exceptions for research purposes and for text and data mining in certain national legislations as well as in the European Union law, a horizontal approach towards a more research-friendly copyright ecosystem has so far failed to evolve. By revisiting international and European human and fundamental rights instruments as well as the aims and objectives of the European Union, it is possible to distill research as a constitutional and ethical imperative. Conceptualizing a fundamental ‘Right to Research’ and integrating it into a constitutional dialogue provides a convincing argument to rethink copyright towards a research-oriented normative system.

Intellectual Property and Investment Protection: A Misleading Equation

[Christophe Geiger] Without any doubt, important investments are often needed to generate creative outputs. However, the intellectual property (IP) system does not protect them as such; investments are only indirectly protected through the possibility to exploit and monetize the rights granted to a creator as a counterpart to the collective enrichment generated by the access to his new work. If the investment (however substantial) does not lead to a creative output, no protection is granted. This short opinion article tries to demonstrate that the progressive paradigm shift of intellectual property to an investment-protection mechanism is probably at the core of most of the current problems faced by the IP system.

Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals

[Christophe Geiger and Elena Izyumenko] ... The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.

Towards a European ‘Fair Use’ Grounded in Freedom of Expression

[Christophe Geiger and Elena Izyumenko] Abstract: It is often claimed that an open-ended provision for copyright limitations such as the US fair use clause would be unfit for civil law countries because of their author-centered traditions of copyright law and their traditional skepticism towards “judge made law” encouraged by open norms. However, the rising application in those countries of fundamental rights by the judiciary to solve copyright cases (mainly based on freedom of expression and information) and the balancing of interests it requires resemble in many aspects the practice of common law jurisdictions and the weighing of factors typically done in the context of a fair use analysis.

Facilitating Wider Access to Europe’s Cultural Heritage in the Digital Environment: Opinion of the CEIPI on the European Commission’s Copyright Reform Proposal, with a Focus on Access to Out-of-Commerce Works

[Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko] The Proposal for a Directive on Copyright in the Digital Single Market aims at facilitating wider access to Europe’s cultural heritage through the introduction of inter alia a mechanism enabling the use of out-of-commerce works by cultural heritage institutions in the digital environment. After examining the key elements of this mechanism, this Opinion critically discusses the definition of the scope of search required for establishing the out-of-commerce status of works, the requirement of the representative character of collective management organisations and the non-application of the mechanism to third-country works.

‘Fair Use’ through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations

[Abstract] This chapter discusses the evolution of the jurisprudential understanding in the European Union of the relationship between copyright and freedom of artistic expression and demonstrates how courts specifically in France but also in several other Member States have been accepting a sort of “fair use” approach through the application of fundamental rights as external limitations to copyright law.

Intellectual Property before the European Court of Human Rights

[Christophe Geiger and Elena Izyumenko] Abstract: In the past years, the European Court of Human Rights (ECtHR, or Strasbourg Court), Europe’s principal human rights watchdog, has played an ever larger role in the resolution of intellectual property (IP) disputes. The ECtHR’s engagement in IP adjudication has already influenced national judges, who increasingly have recourse to human rights to solve cases between private parties, thus calling for closer scrutiny of the Court’s practice on this matter. The present chapter provides the first comprehensive overview of the ECtHR case law on IP for the period since the Court’s inception (in January 1959) until today (February 2018).