The changing nature of international intellectual property

School of Law, Queen’s University Belfast, Belfast, Northern Ireland. Email: p.upreti@qub.ac.uk.

Journal of Intellectual Property Law & Practice, Volume 19, Issue 3, March 2024, Pages 201–202, https://doi.org/10.1093/jiplp/jpad093

Cite

Pratyush Nath Upreti, The changing nature of international intellectual property, Journal of Intellectual Property Law & Practice, Volume 19, Issue 3, March 2024, Pages 201–202, https://doi.org/10.1093/jiplp/jpad093

Much has changed in the past 25 years since the establishment of the World Trade Organization (WTO) and the adoption of its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). For instance, technological advancements have allowed for the dissemination of information and development of integrated, global supply chains that have allowed intellectual property (IP) to be shared in new and creative ways. In addition, the practice of IP law has evolved over the last quarter of a century. Emerging intersections between IP and different branches of the law including public health, international trade law, international investment law, development, human rights and others have also created opportunities but further challenged the system—pushing towards the expansion of IP. Most notable in this regard is the inclusion of ever-expanding IP rights (IPRs) in free trade agreements and bilateral investment treaties in what became known as TRIPS plus obligations. Such expansion has led to calls for the need to shelter the intrinsic value of international IP. 1

The reality is that IP is no longer viewed and no longer operates in the same way as it did prior to the advent of the TRIPS Agreement or even as it was anticipated to operate following the implementation of the TRIPS Agreement. As pointed out by the former Director General of the World Intellectual Property Organization (WIPO), the expansion of IPRs has been accompanied by a threefold shift in the operation of IP: (i) the economic shift from tangible to intangible products, (ii) the geopolitical shift from West to East and (iii) the political shift from State to non-State. 2 All these shifts have been occurring against a backdrop of increasing globalization made possible by declining barriers to trade and investment, that is, the rise of freer, open and interconnected markets, which further builds bridges across national boundaries and pushes towards economic interdependence. 3

The shift towards a knowledge-based economy has resulted in exponential growth in the value of IP, and through trade and investment agreements (TRIPS plus), countries continue to expand and create new IP norms to strengthen their economy. Some developing countries have advanced, but least developed countries continue to struggle. The actors who were against TRIPS, such as India and other Brazil, Russia, India, China and South Africa (BRICS) countries, are increasingly becoming key players in trade and investment negotiations. 4 Thus, what we have witnessed over 25 years since the adoption of TRIPS is that the construction and the use of IP laws have also shifted in pursuance of market adaptability and the changing nature of international IP. In this editorial, I focus on emerging dialectics in the IP system that deserve attention.

First is the investment construction of IP. Over the years, the question of IP as a signalling device to attract foreign direct investment has been debated and remained unsettled because of inconclusive evidence to establish a positive relationship. This debate may have shaped the policy choices of states but never threatened the IP system. IP is based on an incentive model, and perhaps it does act as a signalling device to incentivize innovation because of the nature of protection that allows one to recoup the investment. However, in some cases, the construction of IP embeds the idea of endorsing the ‘value’ and ‘reputation’ that IP generates as part of the IP ecosystem. An example is the investment function of trade marks recognized in L’Oréal v. Bellure. 5 That said, in subsequent case law, the Court of Justice of the European Union has recognized that the investment function is only linked to the use of trade marks. 6 What this means is that value generated through the use of trade marks resulting in a reputation is protected. Given that the ‘economic value’ that IP generates through its goodwill is not part of IP exclusivity, why should trade mark via its investment function encourage companies to develop goodwill? Is this the purpose of trade mark law? This results in the commodification of signs and words. This is just an example of several subject matters of IP increasingly embedded in investment. For example, the EU Database Directive and UK copyright protection for computer programs are also based on an investment justification.

Second is the IP in Investor-State Dispute Settlement. The increasing views of treating IP as an investment in the definition of investment under the free trade agreements with detailed IP chapters not only epitomize IP as investment but also allow investors to litigate disputes outside of the IP system. Despite limited case law favourable to states, many companies are likely to pursue this route in the future. Investment tribunals often treat value and expectations as investments and increasing investment construction of IP in the national system may persuade foreign investors to make IP the basis for enforcing outside the system. This is likely to result in the ‘investmentization of IP’—when the incentive rationale of IP protection becomes investment protection, risking the inbuilt social objectives and the balance struck in international IP. 7

Third is the incentive-investment paradox. The COVID-19 pandemic has also instigated the urgency to understand the investment paradox in IP in innovation, particularly re-examining the competing interests—the investment incentive, the innovation incentive and the incentive to share in the patent system. To this end, the COVID-19 pandemic has further unpacked the issue of access to IP and the role it plays in achieving societal goals. In addition, the pandemic has led to further questions regarding the role of IP institutions such as the WTO and WIPO. Moreover, there are now increasingly strong voices calling for embedding sustainability more broadly in the IP system and regulation of innovation ecosystems of sustainable technologies, such as climate change mitigation technologies.

All in all, the pandemic has exposed the issue of whether and to what extent the ‘exclusivity’ nature of the IP system has affected access to inventions and discourages ‘follow-on’ innovation. The COVID-19 pandemic can be used as a springboard to assess whether the regulations providing incentives for innovation and creativity are prepared to meet not only other equivalent unpredictable crises in the future but also known challenges facing the world (eg climate change). Similarly, the rise of automation and artificial intelligence raises new questions for the IP system. All these said, some other commentators argue that the increasingly strong bond and IP interaction with different branches of law through trade and investment agreements could remove the barrier of territoriality of IPRs, creating free trade zones. 8 Therefore, this dichotomy of protecting the intrinsic value of international IP and addressing positive and negative postulates of IP interactions and overlaps with different sub-fields of international law highlights the relevance and urgency of debating the changing nature of international IP to understand how conflicting policy goals resulting from IP intersections with different international law regimes can be reconciled to shape and improve IP law as a whole.

Footnotes

Pratyush Nath Upreti Intellectual Property Objectives in International Investment Agreements (Edward Elgar Cheltenham 2023), Chapter 7 (discussing the need for IP shelters in trade and investment agreements).