IP in decisions of constitutional courts of Latin American countries

Abstract

The text gathers constitutional provisions and court decisions from Latin American countries in order to sketch the relation between intellectual property and fundamental rights in the region. It notes that, unlike the countries of the European Union or the Council of Europe, most Latin American constitutions contain at least one intellectual property clause, many of them dating from the nineteenth century, and it discusses the standing of human rights treaties and the notion of a constitutional block adopted by courts of the region. It follows the historical pattern by which patent and copyright clauses were received, the construction of intellectual property as an exception to the freedom of trade and profession, the constitutional requirements and limits placed on exclusive rights, among them novelty, non-obviousness, originality, social function and limited duration, and the situations in which such rights yield to other constitutional interests, such as the moral rights of architects. It also addresses popular resistance to copyright collecting societies and conflicts between trademarks, geographical indications and indigenous traditional knowledge. The authors state that they claim neither exhaustiveness nor a consolidated regional convergence.