Morality in intellectual property law : a concept-theoretic framework.

Abstract

This paper presents a ‘concept-theoretic’ position on the relationship between law and morality in any legal system that includes respect for human rights as a fundamental principle of the legal validity of its rules. With European Union law (EU law) as its central focus, this concept-theoretic position is premised upon the adoption by the EU of fundamental principles, which include human rights. Therefore, given the current status of human rights within the EU, the jurisprudence of the Court of Justice of the European Union (CJEU), and, indeed, any EU law hence any EU Intellectual Property law (IP law)must be consistent with what follows logically and conceptually from the concept of a human right given by the UDHR. The paper will first present the concepttheoretic framework with reference to EU patent law arguing that some requirements need to be read into EU patent law even when not expressly stated. Furthermore, with reference to Article 6 of Directive 1998/44/EC we argue that this provision must be interpreted broadly to give full effect to human rights and human dignity. The second part of the paper looks at the CJEU ruling in Brüstle v Greenpeace (Case C-34/10 2011) as viewed from the concept-theoretic position. We argue that the CJEU reasoning is substantially sound on the requirements of the Directive and the CJEU had no option but to make the rulings it did. The third part of the paper looks at several objections raised by scientist and lawyers regarding the CJEU decision in Brüstle from the concept-theoretic position. We conclude that the CJEU has not misinterpreted the law. Finally, we conclude that the law governing the grant of patents must be read in line with the concept of human rights and human dignity.