Freedom of Expression and Intellectual Property Law

This module examines the clash between Intellectual Property and Human Rights through the lens of Freedom of Expression, by considering various ways in which Freedom of Expression [F0E] and Intellectual Property [IP] inter-operate. Some IP rights reinforce F0E; but most are restrictions upon F0E; and, to the extent that F0E pushes back and in turn limits the scope of IP rights, this demonstrates how human rights can balance the enforcement of IP. In particular, therefore, we will consider whether

• there is standard pattern of comparative analysis of constitutional protections of human rights such as F0E;  
• initial speakers' IP rights (mainly equal parts copyright and trademarks; but also including other speech-related IP rights, such as moral, design and publicity rights) are legitimate restrictions upon subsequent speakers' F0E;  
• subsequent speakers' F0E can limit initial speakers' IP rights, either by constraining the interpretation of the instrument affording the IP right in question, or by striking down that instrument, or by simply relying directly upon a constitutional protection of F0E; 
• there is an appropriate tier of scrutiny or standard of review to apply when the validity of an IP restriction upon F0E is being assessed; and 
• IP exceptions (eg, fair use, fair dealing, parody, pastiche) provide sufficientscope for the protection of subsequent speakers' F0E? 

Depending on the number of moots, lectures are likely to cover: 

• Provisions in Constitutions, Conventions and Charters protecting Freedom of Expression;
• The Irish Constitution: expression, communication, and the organs of public opinion;
• How Freedom of Expression & Intellectual Property Rights Interact;
• Tiers of Scrutiny & Standards of Review;
• Commercial Speech;
• The substantive impacts of Freedom of Expression upon Intellectual Property Rights;
• The interpretative impacts of Freedom of Expression upon Intellectual Property exceptions;
• Fair use (in the US) & Fair dealing (in Canada); and
• Caricature, parody, pastiche.

In these lectures, we will discuss, compare, and contrast treaties, legislation, caselaw, policy documents, scholarship, and other materials and online resources, from a wide range of common law, civilian, and international jurisdictions. We will see cases involving (in)famous people, characters, companies, NGOs, political parties, and products, such as: including (some of) Andy Warhol, Annie Leibovitz, Audrey Hepburn, Banksy, Barbie, Dom Perignon, Donald Trump, Google, Greenpeace, Ginger Rogers, Jack Daniel's, Jack Vettriano, Jeff Koons, Kraftwerk, Leonardo da Vinci, the Little Mermaid, Mickey Mouse, Tiger King, TikTok, Tintin, Victor Hugo, video recorders, Vlaams Belang, Zorro, etc etc.  And we will look at leading F0E and IP cases from many Courts, considering such questions as: 

• what do dog toys tell the US Supreme Court about fair use of trademarks;  
• what do German teen movies tell the Court of Justice of the EU about immoral trademarks; 
• what do commemorative stamps tell the ECHR about copyright;  
• what do music samples tell the German Federal Supreme Court about copyright exceptions; 
• what do humorous t-shirts say about the South African Constitutional Court’s sense of humour; and  
• what does advertising tell the Irish Supreme Court about F0E? 

In advance of the first class, please read TikTok Inc v Garland 604 US 56 (2025). 

Learning Outcomes:

On successful completion of this module, students should be able to: 

• critique the intellectual foundations of the law and theory relating both to Freedom of Expression [F0E] and to Intellectual Property [IP];
• comprehend and critically understand key debates in modern IP law;
• assess IP doctrines in the context of policy, politics and the economy;
• address current and emerging issues relating to the protection of IP online;
• engage with such doctrines and issues from the perspective of F0E;
• apply the insights gained in the course to current debates about reform of IP; and
• to continue to develop key legal and practical skills, such as advocacy, critical analysis, research, writing, team-work, organisation, engagement, and communication.

Assessment:

Essay (60%), Moot (30%), and Continuous Assessment (10%).

The Essay (60%) must be: 

• no more than 4,000 words (INCLUDING footnotes), 
• settled on or before the class in week 6 of term, 
• referenced according to the OSCOLA Ireland system of legal citation, and 
• submitted, ONLY via Turnitin on Blackboard, by 4:00pm on the Friday of the week after the end of teaching term. 

The Moot (30%) will take the form of references to the Court of Justice of the European Union (CJEU) pursuant to Article 267 TFEU. Everyone will participate in one moot, as Counsel, Advocate General, or Judge. Topics are likely to include political exploitation of Louboutin shoes, alcohol labelling requirements, parody of naming rights for a major sports stadium, and/or the use of Trinity’s Long Room as the Jedi Archives. Cases and parties will be discussed in week 1 and assigned in week 2; preparation sessions and the moots themselves will be held after reading week.

The Continuous Assessment (10%) will consist of marks for ongoing participation in the module. There will be many opportunities for participation; in particular, class will usually begin with recent developments and stories in the news, so you could come to class with interesting stories that have caught your eye.

These assessments will be extensively discussed in class; and considerable detail and supports will be provided on Blackboard.

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