Freedom of Expression and Intellectual Property before the European Courts

This paper presents the second chapter of the forthcoming book Human Rights and Intellectual Property before the European Courts: A Case Commentary on the Court of Justice of the European Union and the European Court of Human Rights, the first comprehensive guide to how Europe’s highest courts address the intersection of intellectual property (IP) and human rights. This chapter analyses the relationship between freedom of expression and intellectual property in European law, focusing on how IP rights are balanced against the privileged yet limited right to free expression under Article 10 of the European Convention on Human Rights and Article 11 of the EU Charter. It outlines the three-part test of the European Court of Human Rights (ECtHR) for assessing interferences with freedom of expression and situates IP protection within the “rights of others” that may justify restrictions. The chapter then examines copyright and trademark law as the two principal areas in which this conflict has arisen before the ECtHR and the Court of Justice of the European Union (CJEU). In copyright, it highlights the growing engagement of both courts with freedom of expression claims and the divergence between the ECtHR’s acceptance of freedom of expression as an external limitation on copyright and the CJEU’s preference for internal balancing through copyright exceptions interpreted in the light of fundamental rights. In trademark law, it explores disputes over third-party expressive uses and refusals of trademark registration, noting the courts’ increasingly nuanced and contextual approach. Overall, the chapter shows how freedom of expression has become a central, though differently framed, constraint on IP protection in Europe.