Post by Dr Abbe Brown, Reader.
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;
- environmental and privacy impact assessments;
- the extent to which patents could be granted which were inconsistent with privacy law;
- the place of the environment in European Union competition law for mergers and the meaning there of fair, reasonable and non-discriminatory licensing;
- 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,
- the challenges these disputes may raise for creative judicial decision making at national level;
- the potential for agreement as to how different fields and private and public interests are to intersect, including in a dispute;
- 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.
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.
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.
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?
Outputs would include a monograph, an edited collection, and engagement with publics, activists and the legal profession. Watch this space.
 Which would include, for example, Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of critical infrastructure.
 See recent Scottish case law, such as eg John Muir Trust v Scottish Ministers  CSOH 163.
 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).
 Perhaps given the human responsibilities of EU decision makers, from Internationale Handelsgesellschaft GmbH v Einfuhr (11.70)  ECR 1125 to Lisbon Treaty 2007.
 Eg under NAFTA TransCanada v USA.
 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.
 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.
 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.
 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.