Including Intellectual Property in Bilateral Trade and Investment Agreements: A Threat to an Ethical Innovation Ecosystem in the EU

Mer, 02/16/2022 - 17:00 / 18:30

18, Via Parenzo

Speaker: Christophe Geiger , Luiss


Where once delicate balances were needed and compromises hardly negotiated multilaterally within international organizations when elaborating intellectual property (IP) rules, ensuring thus that flexibilities were preserved for states to regulate in order to preserve competing values of public interest, the bilateral rulemaking process reflects more the result of power-games and intransparent compromises. For the European Union (EU), the dynamics of signing bilateral trade and investment agreements with third countries has been steadily going forward. Good recent examples are the controversial “Comprehensive Economic and Trade Agreement” (“CETA”) signed between Canada and the EU in 2016 and partially entered into force in 2017 or the draft Transatlantic Trade and Investment Partnership (“TTIP”) that has been negotiated between the EU and the United States starting 2013 before it was put on hold.
Both agreements contain provisions dedicated to IP but their principal characteristic lies in the inclusion of IP rights in the list of investments protected by a specific section of these agreements. When implemented, the enforcement of this protection will be entrusted to arbitration tribunals or to a special court for the protection of investments that is yet to be set up. Hence the question arises whether the regulation of intellectual property by the European Union or one of its Member States, in a way that would affect the scope of the intellectual property rights held by certain large private companies, could be considered as a potential threat to their investments. If this was the case, proceedings could be brought against the EU or one of its Member States, leading to the risk of considerable limitations being imposed on legislators in the necessary implementation of a balanced innovation ecosystem in Europe. The question is also of high relevance for the current heated discussion at the World Trade Organization of a proposal to waive certain IP obligations to address the COVID pandemic. Also, protecting intellectual property as an ‘investment’ according to international investment law risks undermining the flexibilities left to states by the international IP framework, leading to a change in the rationale of the IP system and to the enforcement of IP rights beyond their limits.
This paper analyses these consequences and draws on the findings of a recently published “Research Handbook on Intellectual Property and Investment Law” edited by the author to propose solutions in order to safeguard the social function of the intellectual property system. More generally, it also tries to demonstrate that the paradigm shift of intellectual property to an investment-protection mechanism is probably at the core of most of the current problems faced by the IP system today and argues that a progressive phasing out of the investment protection rationale is needed in order to help shaping an ethical
framework for innovation that both safeguards the link between the creators, their productions and society, while at the same time enables the originators of creative outputs to receive fair remuneration for work.