Exploring and combining the Human Rights Act 1998, intellectual property and EU competition law – while we still can

This blog post is by Dr Abbe Brown, Reader.

The prospect of the UK leaving the EU has, as already explored elsewhere on this blog, significant legal implications. So too would the possible repeal of the Human Rights Act 1998, perhaps to be replaced by a Bill of Rights.  One implication relates to proposals I put forward in my 2012 monograph Access to Essential Innovation and Technology: Intellectual Property, Human Rights and Competition.

These three legal fields of intellectual property (“IP”), human rights and competition were combined in the book as they can be relevant to questions of access to technologies from different perspectives.

Taking access to medicines as an example:

  • IP encourages the developing of new medicines by conferring exclusive rights and the ability to charge licensing fees;
  • the right to life indicates that there should be access to medicines, without money being an obstacle; and
  • competition law, in its prohibition on abuse of a dominant position, objects to an IP owner having too much power.

It is of course possible for these three fields to co-exist and complement each other: IP develops medicines to further the right to life and rewards the activities of innovators, and the ultimate goal of both IP and competition has been argued to be to encourage innovation. Yet conflict is possible; and this can be entrenched by the fact that within the UK jurisdictions there are significant differences in the extent to which each field can be the base of an action.

The book developed a means of enabling these three legal fields to be combined in judicial decision making in the UK, to deliver greater access to technology while still respecting the contribution which IP can make to developing innovation. At the heart of the book’s proposals are firstly a Human Rights Emphasis, which is a framework for enabling courts to consider the wide range of human rights relevant to a dispute to establish what is meant by delivering decisions (in light of the Human Rights Act 1998 and also EU fundamental rights) which are “consistent with human rights”; and secondly there is a new, human rights influenced, approach to the “Euro-defence” (a term explored in this resource from the law firm Slaughter and may (PDF)) and the case law on when refusal to license IP could be an abuse of a dominant position.  These two approaches could lead to courts, in some cases, finding that what seemed to be IP infringement from a pure IP law perspective was not in fact so.  The book then went on to argue that this approach was consistent with UK’s responsibilities to IP owners under the European Convention on Human Rights, and also obligations to protect IP under TRIPS, the IP element of the World Trade Organization  (“WTO”) Agreement. As a result, the approach and the UK would not be vulnerable to challenge at the European Court of Human Rights and through WTO dispute settlement.

The book develops its arguments through several scenarios, across health, communications, and the environment, with a range of outcomes depending on the facts. The proposals have been well reviewed (and also termed “possibly heretical” (Stothers 2013)) and stimulated wide interest among lawyers and IP owners, notably at the Licensing Executive Society International Conference in 2011.

Looking forward it does seem possible that there will be some sort of a Bill of Rights and also be some sort of competition law framework in post-Brexit UK, yet  in these new regimes human rights and competition may not have their present special legal status that has enabled the societal objectives (other than short term reward of innovation) to prevail.

My ongoing work (including blog posts of 26 November 2015, 2 May 2016, and 26 July 2016) explores how the interaction between legal fields can be further developed, including by looking beyond the Human Rights Act 1998 and EU competition law. (This could be serendipitous, given the current political situation.)  For now, the arguments developed remain a valuable tool for experimentation by lawyers and activists who are faced with IP obstacles to using technologies to pursue important goals.

ip-human-rights-and-competition

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A positive approach to Investor-State Dispute Settlement? IP and Climate Change

This blog post is by Dr. Abbe Brown

Introduction

Intellectual Property (“IP”) and climate change laws operate in different legal spaces.

For the former, the World Trade Organization’s TRIPS agreement imposes obligations on states to have IP laws. States pass IP laws which confer private rights, which are enforceable in national court.

For the latter, the UN’s Framework Convention on Climate Change provides that states should reduce emissions. There have been varying attempts to bring this about, notably the Kyoto Protocol of 1997 which imposed targets on states (which were not met) and the Paris Agreement of 2015, when states agreed to targets but it is left to states as to how this may come about. Technology, and transfer of technology, is mentioned repeatedly in all these documents, and there is now the Technology Mechanism.

Yet all this does not really engage directly with (to the extent to trying to solve) the fact that some of the technologies relevant to reducing emissions may be the subject of IP rights. Thus states have two obligations which are potentially inconsistent. Further, private entities have rights in respect of IP, which can enable them to control technologies, and private entities have no obligation to transfer technologies.

I explored some elements of this issue in a previous post on this blog on 2 May 2016. This post will develop this theme through the lens of national court actions, trade agreements and investor-state dispute settlement (“ISDS”).

National action

What if a US company which owns a UK patent for a wind turbine technology (which has proven very effective and is the best means of harnessing the wind, which is the most reliable means of delivering renewable energy), raises an infringement action when a competitor seeks to use this technology without consent? In other work (namely my book from 2012), I have argued that human rights and competition law could be used (in specific limited cases) such that there is no infringement.  A court in the UK jurisdictions might decide to follow this very novel argument, (subject to the slight caveat that both of these depend a great deal on the UK being a member of the EU and a party to the ECHR working alongside the Human Rights Act 1998).

I also argue in my book that if the court does so, this outcome could also be argued to be consistent with the UK’s obligations under the ECHR and TRIPS. Yet the link between the proposed national approach and another international agreement, the proposed Transatlantic Trade and Investment Partnership (“TTIP”), should also be considered.

TTIP

TTIP is a proposed trade agreement between the USA and the EU. Negotiations started in 2013. At the time of writing, its prospects of coming into effect might seem slim. From a US perspective, whilst Obama has been supportive, Trump is not, and Clinton’s enthusiasm is waning. In the EU, the finer points of EU law mean that support of both the EU and also Member States would likely be required for the agreement to come about. The EU Parliament is supportive at present, however France does not support it and Germany is uncertain. A further complexity comes, of course, from the fact that the UK now seems likely not to be part of TTIP, however the points which will be made below are also of potential relevance to the possible new swathe of international trade agreements which the UK might negotiate in the coming years.

So what is the problem with TTIP? Firstly, the secrecy of its negotiations (although Greenpeace and to an extent the EU have leaked some drafts and position papers: see here (PDF), here, and here). Secondly, and of interest to this post, concerns that trade is treated as more important than climate change and the environment (a view that continues after the July 2016 meeting and leaking of climate change (PDF),  sustainable development (PDF) and energy drafts). Thirdly, and a common theme across more recent trade agreements, if there is state interference with a private investment, the investor could complain and raise an ISDS claim that could lead to the state paying money to it.  This is an opportunity for direct private action, rather than the investor needing, for example, to persuade the USA to raise a WTO action.

TTIP and national action

Draft investment dispute proposals put forward by the EU provide that IP is a covered investment. If a state does not treat an investment fairly and equitably, or indirectly expropriates it, then the IP owner (in this example, a US patent owner) could raise an action. Would this innovative national court decision be fair and equitable treatment or indirect expropriation?

An analogy for the impact of a trade agreement on national IP decisions is being explored in a challenge by Eli Lilly to a decision of Canadian courts, in a dispute under the North American Free Trade Agreement. There, the Canadian court took what is said to be a new approach to the meaning of a term in patent law, which led to patents being revoked. Eli Lilly challenged Canada on the basis of expropriation and the lack of a minimum standard of treatment, including fair and equitable treatment (amongst other things). This dispute is ongoing and the interpretation of minimum standard of treatment under NAFTA is already unclear (as illustrated by the Bilcon dispute).

Two key issues are: the basis on which the national decision could be challenged: and also who would hear the challenge. The EU’s proposals (PDF) regarding investment are of interest here.

Firstly, how could a decision be challenged? The proposals provide that the court shall not affect the rights of parties to regulate within their territories through measures necessary to achieve legitimate policy objectives such as protection of the environment (art 2(1)), and that the availability of the process does not involve a commitment that the legal framework will not be changed (art 2(2)).  The parties are (again) to accord fair and equitable treatment to covered investments, and a list is provided as to what this means, which seems to be exhaustive. In particular, there shall not be fair and equitable treatment if a measure:

  • denies justice, is a fundamental breach of due process, is manifestly arbitrary or an abuse of power (art 3(2) (a)—(c), (e));
  • is in breach of a specific representation to induce an investment which was relied on and which created legitimate expectation, (art 3(4)); or
  • is in breach of what the services and investment committee might otherwise agree to be covered (art 3(2)(f), 3(3)).

Further a breach of any other international agreement (say TRIPS or the UNFCCC) does not mean that there is a breach of the provision of fair and equitable treatment (art 3(6)). In addition, parties shall not indirectly expropriate by a process whereby investors are substantially deprived of the fundamental attributes of property, including the right to use and enjoy, with this to be assessed on a case by case basis with regard to economic impact, object and content and duration (article 5 and Annex 1). There is no specific reference to human rights or competition here, although, speaking very broadly, many of the themes explored are similar to those which would be involved in the human rights and competition analysis at national level.

Secondly, process. One base for criticism of ISDS is that these disputes are heard before arbitration panels of trade lawyers and that decisions often conflict. The EU proposal includes a new type of court (section 3 art 1). There are detailed rules of procedure for security for costs, unfounded claims, consideration of ethics and arrangements for appeal and third party intervention and interestingly, qualifications of the judges (although there will still only be experts in international trade and public international law – there are no references to IP, climate change, human rights or competition) (section 3, arts 5, 6, 9, 10, 11, 17, 21, 23). The tribunal would apply TTIP and other rules of international law applicable between the parties (here, this may cover TRIPS and the UNFCCC agreements), as interpreted in line with the Vienna Convention on the Law of Treaties, and is to adopt prevailing approaches on national law (art 13 (1)-(4)). There are also proposals for how to arrange a system of precedent if difficulties arise (art 13(5)).

Criticisms continue. The EU proposal has been termed a zombie ISDS (PDF), whilst being critiqued for the noted narrow breadth of expertise of judges and also for basically trying to improve something which should not exist in any event.  Yet this final argument draws from the premise that national courts should determine national issues, whereas the IP and climate change discussion proceeds from the premise that this cannot work, because of the different allocations of power between states and private entities. Indeed, because of this it could be argued that ISDS – or perhaps a new form of ISDS – might provide an exciting model for a more holistic approach to dispute resolution.

Some rose-tinted foresighting

How could TTIP be further improved – both for itself and for other agreements? Substantively, it could provide that states and also investors must take steps to pursue protection of the environment and action against climate change, and that this is to be of equal (or greater?) importance than trade and economic gain –  or at least, that trade and environment policies should be mutually supportive . It could also provide that states should meet obligations imposed under UNFCCC instruments and that investors must assist them in  doing this – rather than refuse to share their IP.  It could be argued that this is highly unlikely to come about, but then again there has been significant innovation in the EU and US negotiations and also elsewhere, with for example tobacco based activity being excluded from ISDS in the Trans-Pacific Partnership (art 29.5).

From a different perspective, the agreement could provide that it would not be in breach of the minimum treatment and fair and equitable treatment obligation, or indirect expropriation provision, if decisions are made which are consistent with constitutions and with all or certain international obligations of a state. This would mean that decisions which national courts might properly make in a dispute could not be challenged by ISDS. This could support national courts in taking innovative but legitimate approaches to combining different sets of obligations which their country has accepted. Importantly it would also enable public and private perspectives to be considered together.  The approach does involve significant power being held by courts. Yet as long as they are permanent courts, with relevant diversity of expertise, this is perhaps preferable to parallel negotiations leading to results which can be ignored, as set out at the start of this blog post. It is also preferable to a trade panel being able to find that compensation should be paid to an investor for a human rights based decision of a national court. In the times of Brexit, the possibility of more trade agreements, and increasing concerns about climate change, this is, at the very least,  a useful thought experiment.

These thoughts were developed for “Warnings (?) from elsewhere: intellectual property, trade, climate change and the Transatlantic Trade and Investment Partnership” presented at the conference “Intellectual Property and Innovation Law Research Program Symposium: The Trans-Pacific Partnership: Intellectual Property and Trade” at the State Library of Queensland, Brisbane, Australia in June 2016. Many thanks to all involved and to all at Queensland University of Technology Intellectual Property and Innovation Law, in particular Matthew Rimmer, Angela Daly, Nic Suzor and Brooke Lee.

“Decision making across the information, technology and sustainability landscape: towards breadth and coherence”: Project report

Post by Dr Abbe Brown, Reader.

The context

My research focuses on the laws relevant to innovation and creativity (particularly intellectual property and information control) and their impact on societal challenges such as health, communications and climate change. Other laws and policy activities tend to exist in respect of these challenges: for example, regarding climate change, there is the United Nations Framework Convention on Climate Change 1992 (including most recently the Paris Agreement), Climate Change (Scotland) Act 2009, an EU focus on smart grids and (varying) approaches to encouraging the developing of renewable technologies through incentives and subsidies.

My project proceeded from the premise that legislation and policy which are relevant to one goal may not take into account other goals – say, patent legislation does not refer to climate change. Can this lead to decision making within a scenario from the perspective of one law, which does not take into account other laws which have been passed? Is this indeed true? If so is it a problem? Are some fields properly not relevant or a distraction, as some might argue for IP in respect of climate change? Trade offs are perhaps unavoidable but does this (perhaps unwittingly?) render irrelevant (some) activism and policy making? A second premise is not all laws have the same enforcement framework so this may lead to a hierarchy of laws.

The potential for laws and objectives to clash was explored in a public engagement event I held in November 2015 as part of the AHRC Being Human Festival, which was discussed on this blog on 13 and 26 November. A key issue which emerged in discussions was not just the potential for clashes but that there is a more basic challenge of determining what might be the “right” outcome in a particular scenario.  For example, some might argue that if the public goal of addressing climate change clashes with the private reward of an innovator through intellectual property, then we should find a way to ensure that climate change this prevails; some would argue in favour of intellectual property. This discussion suggested the importance of process, and opportunities to consider laws, rather than of enabling particular outcomes to come about.

April 2016 workshop

To move forward the project, I received funding support from the British and Irish Law Education and Technology Association (BILETA) and the generous offer of a room from the London office of international law firm Arnold Porter, to meet with a group of scholars with a diverse range of relevant expertise. This led to challenging and stimulating discussions and ultimately a meeting. Many thanks to Dr Orla Lynskey (London School of Economics), Rt Hon Professor Sir Robin Jacob (University College London), TJ McIntyre (University College Dublin), Dr Rónán Kennedy (National University of Ireland Galway), and  Dr Annalisa Savaresi (University of Edinburgh) who were involved in the meeting (some via technology, which actually worked rather well); and also thanks to a network of colleagues throughout the world who supported the development of this project and helped in preparing the meeting.

We began our London meeting by reviewing a case study I had prepared, a hypothetical mixture of a series of actual events, which involved the cutting down of trees in Scotland, near some standing stones, to develop biomass energy sources which led to smart energy technologies and the transfer of personal information. In a previous article in the International Review of Law, Computers & Technology (available here (£)), I had argued that this demonstrated a wide range of laws could be relevant to a scenario: there, intellectual property, investor state dispute settlements, preservation of monuments and trees, human rights, data protection, standards and competition, climate change, biodiversity, planning, energy regulation and constitutional law. There were also lots of different possible outcomes: criminal fine paid to the state, civil action leading to end of conduct or payment of money to someone else, requiring sharing of technology, state making payment to a private entity. Yet all these laws and pathways arose from the case study.

At the start of our meeting, I asked all contributors to explore issues that they thought, from their different areas of expertise, were raised by the case study (some useful slides here). Full details of the case study, and some other points I raised at the meeting, can also be found in these other slides.   Our discussion led to further widening and deepening of our thoughts. We considered:

  • regulation and practicalities of energy networks;[1]
  • environmental and privacy impact assessments;[2]
  • the extent to which patents could be granted which were inconsistent with privacy law;[3]
  • the place of the environment in European Union competition law for mergers and the meaning there of fair, reasonable and non-discriminatory licensing;[4]
  • the application of the new data protection regulation (and of course uncertainty as to its place in the UK); existing investor state disputes and their link with other decision makers,[5]
  • the challenges these disputes may raise for creative judicial decision making at national level;[6]
  • the potential for agreement as to how different fields and private and public interests are to intersect, including in a dispute;[7]
  • the extent to which decision making can and should be the subject of (and left to) technical algorithm, infrastructure and solutions “By Design” in the context of legal uncertainty;
  • that solutions should not be based only in laws created from fluid words, but also in the opportunities and restrictions of other fields, such as information technology; and
  • how best to integrate values into innovation policy.

Across these discussions, common themes emerged and were developed. Should laws quite properly be left in different boxes? Should national courts develop solutions for individual cases or should consistency, or the consideration of fields, be required from an agreement – and would any agreement necessarily involve imposition of its own values? Would a search for coherence involve uniformity (which is not argued to be appropriate)? Is a holistic solution a better goal? And of course, who determines the goal and the manner in which it is to be delivered, for example, by way of payment to state or a cessation of conduct? Beyond questions of legal bases, how could this be delivered? Lawyers, judges and decision makers cannot be experts in all fields. Further, many of the points identified had a UK/EU focus – elsewhere, different bases would need to be explored say, considering national constitutions.

And then, from a group of lawyers, came some possibly surprising twists: to deliver a more holistic approach, should the focus not be on laws, but on persuading people to act in a more balanced manner, one which is more aware of the wider impact of their conduct? Courts decide what is put before them, and policymakers are also often in their own boxes; but society (s) are more varied and diverse, and technology can enable and determine behaviours in new ways.

Reflections

These arguments are compelling. Yet the starting point remains. Returning to the scenario, in the present UK framework human rights and environmental points form part of decision making in the main through statutory interpretation, recommendations by UN Special Rapporteurs, impact assessments and “Justice” suffixed programmes (for example “Environmental Justice”); this is in contrast, say, to intellectual property rights which can be taken to court in a private action, and to the potential for unlawful actions in respect of protected trees or monuments to lead to a criminal action. These varied decisions could result from parallel processes arising from the facts.

Yet if the foundational issue continues to appear valid, seeking to pull a wide range of fields together would raise challenges of expertise and unpredictable outcomes; and the very diverse range of fields discussed here suggests that this goes beyond education programmes and raising awareness of possible relevance of other fields. There could also be legitimate concerns of judicial (over) creativity, Herculean superjudges as considered by legal philosopher Ronald Dworkin or possibly more concerningly and continuing this theme, superinvestorstatearbitrators.

Next steps

So, time for reflection and scholarly outputs. The first step is to translate this blog into a peer-reviewed journal article. Looking further ahead, the three pathways set out below (perhaps inevitably, intertwined) seem appropriate ways to continue the search for a holistic approach to decision making in respect of innovation and creativity. They will be the subject of a large research grant application in which it is hoped that colleagues who have contributed to the workshop and the project to date, and other colleagues, will be involved.

Firstly, to develop new ways for laws which are relevant to a scenario not to be excluded from decision making in respect of it – a focus on process, rather than on outcome. This (rather ironically, but building on the points made above), should involve exploring a series of scenarios, in a range of countries and technology/cultural contexts, and may lead to a series of solutions.

Secondly, to explore the extent to which, within these same scenarios, it is in fact possible for (at least some) of the different laws which can be relevant to a situation to be fundamentally consistent, within and across different sectors – thus reducing the potential for regard to one set of laws to produce different outcomes.  This will build on work I presented at the ATRIP (leading international intellectual property scholars conference) 2015 exploring innovation and creativity in renewable energy technologies and disabled dance.[8]

Thirdly, an exploration of these scenarios with a focus on ultimate goals, such as sustainable development, fairness and equity, and the protection of intangible cultural heritage. Could this somewhat vaguer approach, which is not often found in national laws and underlying principles, assist in encouraging decision makers and members of society to act in different ways – thus again avoiding the scope for conflict?[9]

Outputs would include a monograph, an edited collection, and engagement with publics, activists and the legal profession. Watch this space.

 

[1] Which would include, for example, Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of critical infrastructure.

[2] See recent Scottish case law, such as eg John Muir Trust v Scottish Ministers [2015] CSOH 163.

[3] Is there scope for this within the morality and ordre public provisions (in respect only of  commercial exploitation in section 1(3) Patents Act 1977 and article 53 (a) EPC 1973).

[4] Perhaps given the human responsibilities of EU decision makers, from Internationale Handelsgesellschaft GmbH v Einfuhr (11.70) [1970] ECR 1125 to Lisbon Treaty 2007.

[5] Eg under NAFTA TransCanada v USA.

[6] From a human rights perspectives, on the basis of sections 3 and 6 Human Rights Act 1998 and also see note 13  – for potential challenges under investment state disputes, see under NAFTA Eli Lilly v Canada regarding national court decisions on utility on patents.

[7] Through terms of, say, an investment or trade agreement – although consideration of negotiations of the Transatlantic Trade and Investment Partnership are tending to have a focus on exclusion rather than inclusion of fields: see EU sources, campaigning site NoTTIP, and Knowledge Ecology International proposals.

[8] 34th Congress “Intellectual property in action in society: new perspectives from the North, the South and the cloud details”, Abbe Brown “Innovation, creativity and addressing societal problems: looking beyond geography and intellectual property”. This also drew on the InVisible Difference project funded by the AHRC.

[9] Consider for example United Nations (2015) Transforming our World, the 2030 Agenda for Sustainable Development Goals and the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003); this will build on my 2016 BILETA conference paper “Looking after the future? The digital environment, intangible culture and sustainable development” BILETA, University of Hertfordshire, 2016.