Jonathan Griffiths talks to us about his new book Global Intellectual Property Protection and New Constitutionalism: Hedging Exclusive Rights published by OUP.
The “constitutionalisation” of intellectual property law is often framed as a benign and progressive integration of intellectual property with fundamental rights, a process through which intellectual property’s excesses are curbed by reference to compelling competing interests. However, this is not a full, or even an adequate, picture of the ongoing constitutionalization processes affecting IP. This collection of fourteen essays, written by international experts and covering a range of different areas of intellectual property law, takes a broader approach to the process. Drawing on constitutional theory, and particularly on ideas of “new constitutionalism”, the chapters engage with the complex array of contemporary legal constraints on intellectual property law-making. Such constraints arising in international intellectual property law, human rights law (including the human rights protection granted to right-holders), investment treaties, and forms of private ordering.
This collection aims to illuminate the complex role of this "constitutional" framework, by analysing the overlaps, complementarities, and conflicts between such forms of protection and seeking to establish the effects that this mesh of global and regional norms has on legal reform projects and interpretations of IP law. Some chapters take a broad theoretical perspective. Others focus on specific situations in which the relationship between intellectual property law and broader "constitutional" norms is significant. These contexts range from Art 17 of the EU's Digital Single Market Directive, to the implementation of harmonised trade secrets protection, from the role of Canada's Charter of Rights to the impact of the social model of property in Brazil.
Professor Tuomas Mylly and I have been interested in the relationship between intellectual property law and constitutional norms for many years. We have both researched and written on the topic, primarily in a European institutional context. This collection grew out of a research project on “Constitutional Hedges of IP”, for which Tuomas received funding from the Academy of Finland and to I contributed. The project culminated in a conference at Oxford, at which draft versions of many of the chapters in the collection were presented. The individual contributions focus on a disparate range of topics in a diverse array of contexts but all, to some extent or other, reflect upon the idea that policy-making in IP has increasingly come to be constrained by a network of global, legal obligations (the “hedges” of the sub-title and the picture on the cover of the book)... We are really pleased that OUP have been able to publish the book in hard copy and in open access downloadable form.
International intellectual property (IP) has become a many-splendoured thing. Its norms emerge in diverse processes and venues. The classical Convention regime, epitomised by the Paris Convention protecting industrial property and the Berne Convention protecting copyright, dominated the international IP scene for about a century. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), a compulsory part of the World Trade Organization (WTO) acquis, marked a turning point in the mid1990s. IP is now covered globally in the World Intellectual Property Organization (WIPO)- administered IP treaties—old and new—the WTO acquis, as well as several agreements with IP chapters, such as bilateral trade treaties, development and cooperation treaties, and mega-regionals.
Other norm sets have become relevant for IP relatively recently. Such norm complexes often strengthen IP rights or grant them complementary protection. First, international investment agreements (IIAs), predominantly in the form of bilateral investment treaties (BITs) and investment chapters in trade treaties, now regularly protect IP. They give rights directly to private corporations to challenge national or regional laws or measures in investor to state dispute settlement (ISDS). They enable claims for substantial damages and allow investors to seek enforcement of awards directly before domestic courts. The grant of directly enforceable rights for investors is the key innovation of the regime.4 Arbitration awards treating IP as an investment have started to emerge. Yet international investment tribunals and their arbitrators typically have limited experience of IP discourses or the human rights issues that operate in the background in IP limitations and exceptions and exclusions from protection. Admittedly, tribunals could take account of norms outside the applicable IIA, such as IP and human rights treaties, in the interpretation of IIA provisions or even apply them directly where the IIA permits. The bringing of IP assets under investment arbitration nevertheless implies a shift away from the balancing mechanisms available both under IP and human rights law towards interpretations biased in favour of the exclusive rights and property interests of multinational investors.
Second, the protection of property ownership as a fundamental right adds another layer of security for IP owners. Such protection may be based on international human rights, basic rights as protected in the domestic constitutions, or regional fundamental rights instruments, such as the European Convention of Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFREU). IP may even be separately mentioned as a category of possessions protected by the relevant property ownership provision, like in Art 17(2) of the CFREU. It insists that: ‘Intellectual property shall be protected’. Furthermore, the European Court of Human Rights (ECtHR) has extended the protection of property ownership under the ECHR to IP possessions—even to trade mark applications owned by multinational companies. Other rights, such as the principle of non-discrimination or the right to an effective remedy as protected in the CFREU, may grant additional protection and de facto new remedies for IP owners independently or in combination with property protection. International or regional human rights norms, especially norms protecting property ownership and procedural rights, might also work their way into the investment tribunals’ interpretations of IIA provisions. As a consequence, they strengthen the rights of IP investors, potentially providing investor-specific rights that are not necessarily applicable for private individuals in the same jurisdiction.
Third, private regulation of IP is emerging as a global trend, likely to have been boosted by deadlocks and setbacks suffered by some high-profile international, regional, and domestic IP initiatives, such as the Anti-Counterfeiting Trade Agreement (ACTA) on the international level, the EU’s Software Patent Directive, the United States’ (US) Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), as well as the United Kingdom’s (UK) Digital Economy Act 2010.10 In place of these and some other failed traditional public law efforts to strengthen protection, powerful private actors have increasingly taken a regulatory role in the area of IP. They have accomplished many of the objectives of the failed or watereddown public law measures, especially in the case of the IP-related private regulation of the Internet. Private regulation might operate globally, as is the case with non-binding agreements to enforce copyright and trade mark rights on the Internet. Such contracts have been concluded between IP owners and their organisations on the one hand and Internet ‘chokepoints’, such as the global search, advertising, payment, and domain name services, on the other.
However, nation-state governments and the European Union (EU), especially the US, the UK, and the EU Commission, have often given the decisive stimulus for such private regulation. They may endorse, facilitate, legitimate, and even demand private regulatory practices as part of their IP policies. Hence, it is often more appropriate to talk of semiprivate regulation, with consequences for their constitutional status. For example, private technological design, such as YouTube’s Content ID filtering algorithm, increasingly operates as a regulator of what is possible and what is not. However, such private design choices only become the universal norm once the EU and other public norm-giving centres support them through their policies and rules, such as the EU’s DSM Directive, which universalises private filtering.
Finally, IP-specific counter-norms have started to emerge as a reaction to the global strengthening of IP protection and ensuing conflicts with norms produced within other social sectors and norm-producing centres. IP-specific counter-norms could be created, for example, in the frameworks of the Convention on Biological Diversity, Food and Agriculture Organization, World Health Organization (WHO), and human rights instruments under the United Nations (UN) or the Council of Europe. The Oviedo Convention on the protection of human rights and the dignity of the human being concerning the application of biology and medicine could be classified as one such instrument. The norms of this Council of Europe Treaty may function as counterweights for demands to strengthen patent law with new measures, or as normative support for balancing arguments when interpreting existing patent law treaties or European IP measures. Moreover, many Internet-related actions have direct repercussions for IP; for example, those aimed at non-proprietary Internet standards or measures that otherwise emphasise and reflect openness, transparency, and neutrality as the traditional core values of the Internet. Even provisions from international IP treaties that generally strengthen protection, such as the TRIPS Agreement, might turn out to function as counter-norms. For example, the TRIPS Panel and Appellate Body in the recent dispute concerning plain packaging of tobacco products referred to the principles of the TRIPS Agreement (Arts 7 and 8) to deny the extension of trade mark rights to positive uses of the mark. Denying such protection was in line with public health aims, which must be considered when interpreting any provisions of the TRIPS Agreement. These and other TRIPS principles might also affect subsequent investment treaty interpretations. Finally, constitutional provisions and judicially developed general doctrines of law at the national level could still function as IP-specific counter-norms, as some of the chapters to this volume demonstrate. Albeit being subject to international law, such domestic provisions and doctrines might, on some occasions, also affect the interpretation of the international IP treaties and IIAs or help provide breathing space for local policies under a less interventionist review at the international level.
The threat produced by counter-norms—together with failed public law efforts to strengthen IP—may have intensified IP owners’ efforts to further solidify existing levels of protection through overlapping forms of protection, such as through investment norms and specific reference to IP as part of property ownership. These overlapping forms of protection function as constitutional hedges of IP, creating increasingly impenetrable fences around exclusive rights and securing intellectual investments against political and judicial risks.
Such developments expand the notion and boundaries of IP to comprise the relevant norms of IIAs; trade treaties; human rights law; environmental, food, health, and other similar norm sets; as well as (semi-) privately regulated IP norms. Traditional IP norms now give only a partial picture of the way in which IP is regulated in practice and of diverse and multiplying conflict zones related to the application of IP. In order fully to understand late modern IP issues, it is necessary to become not only an expert on traditional IP norms but also an expert on investment and trade law, human rights, private regulatory practices, competition law, and IP-related health and environmental law. However, the acquisition of more knowledge is not the only issue. Viewing IP through the lens of competition, investment, or human rights also leads to different and competing logics and rationalities.
As a corollary, the relevant discourses participating in the construction of IP norms are no longer restricted to the traditional epistemic IP expert communities, further sub-divided into IP-specific sub-categories of patent, copyright, trade mark, and other IP law. Human rights experts; investment, trade, and competition lawyers; environmental, education, and health specialists, among others, now increasingly participate in framing and constructing meaning within IP law. The relevant sectors and epistemic communities in question not only possess different knowledge; they represent different globalising rationalities affecting IP issues. This development politicises IP in a new way. It challenges the traditional justificatory narratives underlying IP, which reflect natural law or utilitarianism. The new frames offer more critical narratives demonstrating the effects of IP on health, nutrition, environment, and so forth.