In a recent WIPO UDRP decision the learned Panellist explicitly recognised that fundamental rights (in the case, the right to freedom of expression) was not limited to the United States.
What is astounding about this, is that anyone could have ever thought otherwise!
The travails suffered by Europe in the 1940s resulted in a recognition of these fundamental values. (I see physical evidence of this every day — there is are three former forced labour camps within ten minutes walk of the Registry offices!).
It really is time for ICANN to stop procrastinating, and recognise that the entire set of values that are set out (inter alia) in the Universal Declaration of Human Rights are “relevant” to its work.
Or is it the case that it is simply afraid that it is too high a standard for it to maintain?
The European Union’s Charter of Fundamental Rights states, at 17:
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.
2. Intellectual property shall be protected.
Why is Article 17(2) in particular important?
Art. 17 itself is based on Art 1, First Protocol ECHR which reads as follows:
‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’
This is a fundamental right that is common to most nations that have written constitutions,and even some that do not (like the British Islands)
Self-evidently, intellectual property can be equally valuable as other intangible property (such as a right to collect a debt).
It’s very important that our modern society recognises the importance of such things and protects intellectual property, in the same way it protects realty and personalty.
And where the right to have your intellectual property protected clashes with other fundamental rights in a democratic society, such as freedom of expression, a balancing exercise needs to be undertaken, in exactly the same was as the familiar balancing exercise between the right to private and family life on the one hand and the right to freedom of expression on the other (The tensions between the latter being very evident in the British news at the moment).