Fundamental Rights – No Tools to Correct the Structural Imbalance of IPRs

(IPRinfo 2/2010)
Christophe Geiger, Associate Professor, CEIPI, University of Strasbourg
Juha Karhu, Professor, University of Lapland

Tuomas Mylly defended his doctoral thesis ”Intellectual Property and European Economic Constitutional Law. The Trouble with Private Informational Power” on January 16, 2010 at the University of Turku, Finland. The opponents were Dr. Christophe Geiger and Professor Juha Karhu. This article contains main parts of the opponents’ statement given to the Faculty of Law at University of Turku.

Tuomas Mylly’s dissertation is an exceptionally ambitious, courageous and demanding research. These characteristics are visible already in the difficulty to locate the research on the legal scientific map. The research is primarily attached to intellectual property rights and competition law but it contains plenty of material from EU law and economic international law.
There is also a strong ”constitutional” dimension, visible already in the title of the book. The topical discussions on European Economic Constitution and a pluralistic conception of constitutionalism are key points of reference. Moreover, the research reaches out to general topics like the role of fundamental and human rights and the nature of democracy.

According to Mylly, intellectual property rights (IPR) should be analysed from the perspective of European Economic Constitutional Law, not as separate proprietary rights. There is a common background of fundamental rights for both IPRs and competition law that enables to avoid too rigid confrontation of these two legal fields.

On a more concrete level of legal analysis, argumentation based on fundamental and human rights should be given a stronger, more central and more comprehensive role. Through these rights, important democratic institutions like freedom of speech but also new collective ways of action in the Internet can be given (more) legal significance in order to balance the proprietary perspective (often) favouring the rightholder’s legal position (for example through a strict interpretation of the three-step-test of the Berne Convention and TRIPS).

European Union perspective and global norms
Mylly frequently elaborates his analyses with European Union law. This does not mean that he would see the fundamental developments, like the information society, as a specific European phenomenon. On the contrary, the global aspect of the developments is taken into account.

The specific European, and above all EU, perspective is used to give a possibility to elaborate the significance of certain global norms like WTO and certain important legal tendencies, like (a limited number of) cases in USA.

EU law is used as the context to make the possible legal outcomes and alternatives of global legal culture visible. Therefore, this dissertation is not a legal dogmatic research on EU law in a traditional sense. However, on the basis of our knowledge of European Union law, Mylly shows an excellent capacity to make use of its important features and developments.

”The devil is in the doctrines”
Mylly is critical towards what he calls ”traditional IPR legal dogmatics” or ”traditional doctrines”. In his Lectio Praecursoria he used the expression ”the devil is in the doctrines”. It is clear that ”traditional doctrines”, ”traditional intellectual property specialists” and ”the traditional paradigm of copyright” is to be – at least partly – substituted by ”less traditional premises”.

Another critical target is law and economics. Certainly, the Ordoliberalist School is one of the background discussions for Mylly. But it is precisely the interconnection of basic legal institutions of private law, like ownership and contract, with the (other) institutional framework of market economy that is the difference between pre-Second World War ordoliberalism and the law and economics of our time. Here Mylly perhaps overemphasises the paradigm of the Chicago School in law and economics at the expense of neo-institutional variants.

What is produced with the support of the social and political theories mentioned (Habermas, Castells)? One key methodical idea applied throughout the work is that of structural proprietarian bias of IPRs.

Structural bias favoring strong IPR protection
Mylly follows the definition of Martti Koskenniemi: ”Structural bias connotes that some choices or distributional outcomes, among the range of potential choices available, become methodologically preferred in the relevant institutions. These typical, deeply embedded preferences are usually conservative or status quo -oriented.”

An interesting example of how this bias becomes visible concerns patent law: the extending of patent protection to new subject matters is seen as an outcome of this bias. Also the role of the three-step-test is seen as an outcome of the structural proprietarian bias of IPRs.

Perhaps the strongest methodical choice of Mylly is that of constitutionalism – however, not the traditional one: ”… the current research does not fall under traditional constitutional law. References to constitutionalisation … in this research should often be understood in the framework of economic constitutional discourse of ’new constitutionalism’ … ’new constitutionalism’ gives ’constitution’ the political charge which classical liberal constitutionalism seeks to defuse”.

Fundamental rights – no tools for rebalancing IPR legislation?
However, it can be questioned how consequent Mylly is in his ”new constitutionalism”. Moreover, his criticism on classical fundamental rights theory is not always fully convincing. According to him, fundamental rights cannot constitute a useful tool to rebalance intellectual property legislation, having in the past been exclusively used to strengthen the proprietary and expansive understanding of intellectual property. The statement is mainly based on a convincing analysis of case law of the European Court of Human Rights (ECHR).

Anyhow, the recent Promusicae decision of the Court of Justice of the European Union (ECJ) and decisions from various national courts (not discussed in the thesis) could have led the author to a less pessimistic conclusion. Also, as there is the link between IP and fundamental rights, rules of conflicts between fundamental rights have to apply (like the principle of proportionality), which can be used to guarantee a balanced approach.

The meaning of context remains unclear
Another frequently applied methodical idea is that of contextualism. It has not become quite clear what Mylly means with ”context”. Is the Internet a context? His comment about Lawrence Lessig’s idea of cyber law can be read so that the Internet would not be a context of its own. Still an expression like ”the Internet environment” is used.

Even if it is stated that ”contextual application of law is not possible without situating the cases at hand in a broader economic and societal context”, it is not clear what this would mean in a concrete case, e.g. Microsoft case. It does not help when Mylly writes that ”arguments stemming from societal context become legally relevant by the mere fact of their use in a judicial context and their integration to legal discourse” Is it really enough to be ”merely used”?

There is room for criticism on Mylly’s developments on the relationship between IP and fundamental rights. This relationship has been analysed in the thesis only under the angle of a certain case law to serve the idea that fundamental rights are not sufficient tools to guarantee a fair balance within IP.

Instead, ”European economic constitutional law” (with the incertitude that this notion bears) is proposed as the right model to follow. The chosen approach is, no doubt, stimulating, highly innovative and forward looking. Anyhow, the criticism of classical fundamental rights theory and their application in the context of IP could have been a little more nuanced.

Accurate referencing and transparent argumentation
Owing to his choice of theme and method, Tuomas Mylly has used a wide and many sided literature from social and legal theory to discussions concerning new constitutionalism, copyright law, competition law and EU law. In addition to literature, other sources have been used, like case law from the EU Courts, legal practice from the USA and official materials related to relevant legal norms.

Many books have been referred to, besides specific pages, also with the word ”passim”. This is a sign that the idea referred to in the footnote is central for the whole referred work. In our estimate such general references are always accurate and to the point. Again, this shows a thorough reading and good insight by Mylly. The English language is mostly fluent. Legal and social theoretical background is well constructed.

Mylly has had the courage to choose only few theorists and analyse them more deeply. The combination of a Habermasian approach with information society theory is well founded. The more concrete legal analyses are done on the basis of clear problem settings. The discussions referred to are relevant and the documentation almost exhaustive. Mylly’s own argumentation is done in a transparent way and he opens his arguments for further discussion and critique.

Tuomas Mylly: Intellectual Property and European Economic Constitutional Law. The Trouble with Private Informational Power. Publications of IPR University Center 4. Gummerus, Vaajakoski 2009. 626 pp. ISBN 978-952-99864-3-9. Price 75 €. The book can be bought using the order form on the web site of IPR University Center.