Commercial Law in Times of Crises: Intellectual Property and Technology Law

Commercial Law in Times of Crises: Intellectual Property and Technology Law
2021-07-22

Special thanks to the Centre for Commercial Law at the University of Aberdeen for organising this conference which presented the platform to discuss contemporary legal issues with a focus on commercial law. The theme of the conference “Commercial Law in Times of Crises” reflects the current state of the world as the Covid 19 pandemic created several disruptions ranging from disruptions to personal and professional life, economics and businesses to creating uncertainties, including questions about how the current legal frameworks will accommodate new developments. For example, it created uncertainties about the performance of commercial contracts. It raised global discussions among several actors -such as government bodies, international bodies, scholars, scientists and members of the public- on the waiving of Intellectual property rights (IPRs) and the imposition of compulsory licensing for the Covid 19 vaccine. (Read more on Intellectual property rights, the public interest and covid-19.) As the Covid 19 pandemic was unanticipated; the theme of this conference reflects the suddenness of the pandemic and the relevance of commercial law as the world moves towards a post-pandemic era.

The conference had two panels. Panel one, moderated by Dr Peter Cserne (University of Aberdeen), focussed on intellectual property (IP) and technology law. Professor Abbe Brown (University of Aberdeen), Dr Alexandra Giannopoulou (University of Amsterdam), Dr Rossana Ducato (University of Aberdeen), Dr Giulia Schneider (Bocconi University) and Dr Chiara Angiolini (University of Trento), Dr Daniele Manzella (Food and Agriculture Organisation of the United Nations) and Dr Titilayo Adebola (University of Aberdeen) presented in panel one, which this post covers. They discussed different IP and technology related issues ranging from climate change, human rights, digital learning, access and benefit sharing on genetic resources to farmers rights. Follow this link to access the title of the papers presented by the speakers in panel one (Commercial Law in Times of Crises).

Professor Abbe Brown opened the presentation for panel one with a focus on the clashes and alignment of rights and regimes in law and technology. The discussion centred on how the combination of different legal goals and regimes can be used to find the path through this time of crisis. She employed contemporary issues in energy and climate change as models to discuss this. The discussion explored complex web at the intersection of intellectual property, privacy and data protection, human right, climate change and embracing of the pursuit to net zero.

IP rights are private national right that are awarded when specific thresholds are met. IP systems include patents, copyright, trademark, database right and trade secrets, amongst others. Some authors like Ofer Tur-Sinai argue that patents can have a negative impact on climate change and human rights. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) obliges all member states to introduce certain minimum IP rights and in the case of patents, makes provisions for exceptions like compulsory licensing which has been  raised  severally in debates about the Covid 19 vaccine. Privacy is also highly contested and there are debates that suggest that it is too anti-community within the United Kingdom (UK)  jurisdictions building on the UK’s present membership of the ECHR as well as  the present Human Rights Act  prohibits misuse of private information.

In the forthcoming Glasgow COP26, the exploration of adaptation resilience, transport, nature mitigation and finance will be considered as the next step on the movement to delivering the goal of net zero. However, with patent protection, entities might refuse to share, which slows down the pursuit towards net zero. The UK and Scottish  climate change legislations do not however cover IP and neither do the Paris agreement which aims to cap global warming from 2 °C to 1.5°C and only thickens the web. 

Professor Brown proposes some possible ways in which there can be a more effective move towards communal approach using two models. Model one discussed the Oil and Gas regulation 2018 which created a new requirement on license holders to share data like the location of  oil in the north sea Whilst there are debates on whether this regulation is in the interest of the nation, this type of policy can arguably facilitate a swift move towards net zero. The second model considers the creation of a new legal base on how resources and information can be shared in a sustainable manner. However, this raises the questions on how it will be done and on what level it should be done (national or international). Professor Abbe concluded by saying that maybe “it could be that the IP world does not understand human rights and the data and climate change worlds, do not understand IP”. This shows that the web widens, and the thread gets more tangled as the intersection between IP and other areas of law is evaluated.

Dr Chiara Angiolini (University of Trento) and Dr Rossana Ducato (University of Aberdeen) discussed the data protection issues arising from ‘plaformised’ education   following the Covid 19 pandemic which made remote learning the norm rather than the exception. The 2020 pandemic gave rise to the use of third-party platforms by universities which comes with some legal implications. The legal implications explored in this study include copyright and data protection issues. However, only issues relating to data protection were discussed in the conference. The terms of use and privacy policy of some third-party platforms like zoom, skype, teams and so on were analysed which led to some short, medium- and long-term responses for the post-pandemic university.

Whilst the use of third-party provider is not unlawful, the dependency on third party platforms by the university should be scrutinised to ensure the protection of personal data generated during the interaction on the platform by the ‘education circle of trust’ (student, parent, university, academic and admin staffs and 3rd party platform). However, the relationship between the university and platform controller raises more issues on the position of the university to negotiate for a customised service. One will think that the third-party platform will follow the university’s policy on how data can be used, but according to Dr Ducato, there is an imbalance of power between the university and the third-party platform. This is because most times, the platform will provide a standard of service that cannot be customised by the university which means that the use of the personal data generated from the interaction on the platform is used according to the policy of the controller. This study found a general lack of transparency as all analysed services in the study were found to be pursuing autonomous purposes which raised questions on whether the students and staffs are properly informed on the secondary use by the platform of the data generated and how this use is in line with the reasonable expectation of students and staffs.

Following the points of friction identified in this study, Dr Angiolini stated that a possible solution could be to look at data protection and privacy beyond GDPR compliance. In the short- term, the current framework should be a starting point, but privacy and data protection should be also seen as an indicator of the full protection of other fundamental rights in terms of education for example, academic freedom, the right to education and freedom of speech. Universities should play a role with regards to the choice of platform and how they fit around the university’s policy.  In the medium and long-term, a possible collective negotiation between a group of universities at a national or European level and platforms may play a role in balancing the current imbalance of power. Also, in the long-term, the building of digital education according to the culture and values of the universities will address some of the current frictions from the use of third-party platforms with regard to data protection. Digital education is an educational system that will arguably continue to be in use in the post-pandemic world, therefore addressing the data protection and privacy concerns is crucial.

Following the conclusion from Dr Angiolini, Dr Daniele Manzella, from the Food and Agriculture Organisation of the United Nations discussed the governance perspectives and legal agreements on genetic resources and big data. He started off by stating that there is a niche within international law, and within that niche there is a smaller sector that is focussed on genetic resources. The protection of genetic resources is covered by several international conventions promoting access and benefit sharing over genetic resources. The objectives of this framework according to Dr Manzella is the creation of incentives for genetic resources conservation, genetic diversity conservation and the promotion of equitable research and development through various legal constructs such as national sovereignty and benefit sharing frameworks that accept standard value for consent of the State and substance under mutual agreed terms. These mutual agreed terms should envisage benefit sharing conditions in the commercialisation of products, including in cases where those products are protected by intellectual property right. These principles are implemented through the combination of international agreements but also through national legislation executing those agreements. The general intention of this framework is to capture the market value derived again from the use of genetic resources in research and development. However, the idea for benefit sharing and open access arguably interfere or overlaps with other international conventions dealing with IP.

The idea of access and benefit might look complicated and problematic, however Dr Manzella argued that the implementation of access and benefit-sharing is even more complicated and has been subject to intense criticisms from all sectors including developing countries, commercial and non-commercial sectors. Before national sovereignty, genetic resources were considered as public good that should be managed collectively in order to pursue conservation and sustainable use. However, from the 1980s there was a shift in the consideration of genetic resources, and they were then considered as a private good for the benefit of invention. Dr Manzella argued that after 30 years of implementation and several international instruments including the Nagoya Protocol, the Convention on Biological Diversity; there are still a number of grey areas and some unsolved problems like the scope of obligation that still exist in the discussion of access and benefit sharing. Drawing from his experience in his participation of discussions within various international agreements on access and benefit sharing; he highlighted some key issues. These issues include the devaluation of access and benefit sharing constraint that is pushed by the expansion of digital public database on genomic data like in the crop sector which in turn affects the operation of some actors like the gene banks and private sector. The crisis in the crop sector he argued started before the Covid 19 pandemic but only deepened following the pandemic. This crisis has led to a division between several actors and the ultimate question to scholars and practitioners is on how this existing division can be breached.

To address this division, he argued that the evolution of access and benefit-sharing instruments should undertake an in-depth revision of the existing biases within the frameworks and ultimately try to integrate the major complexities in research and development that exist which are either ignored or overlooked in the ongoing discussions in the international governance framework. The access and benefit-sharing of genetic data however still remains a contentious issue from both the perspective of IP rights campaigners and open access promoters.

 

Dr Titilayo Adebola from the University of Aberdeen concluded the presentation from panel one with a discussion on famers right. The central claim by Dr Adebola was that “although female and male farmers historically domesticated plants and continue to conserve and develop plant varieties, there are limited rewards for their contributions despite the plethora of international laws and instruments that recognise their crucial roles in the global pool of genetic resources for food and agriculture.” There were certain questions that were raised to demonstrate the complexities in this topic. This ranged from the parameters of defining who a farmer is, whether a farmer is an innovator and breeder and how that affects our interpretation and understanding of farmers rights. Another question that was raised surrounds the type of activities that farmers are engaged in which will aid in the understanding of whether farmers should be considered as innovators. However, whether farmers are considered as innovators or breeders, gives rise to some rights which raises the question on the type of rights farmers should be awarded. These are complex questions that are still debatable among several actors including farmers.

The International Treaty on Plant Genetic Resources for Food and Agriculture  (ITPGRFA) which was adopted in 2001 and entered into force in 2004 sets out provisions on farmers rights. In article 9, it states that farmers should be recognised for their contributions to the global pool of plant genetic resources for food and agriculture, it also tells us that farmers should be rewarded for their contributions to plant genetic resources for food and agriculture, including through the protection of traditional knowledge and through participation in benefit sharing and decision-making. However, it states that these provisions should rest with the national government in line with national needs and priorities. Even though it tells us that farmers should be recognised for their contributions, it says that national government have the responsibility to interpret implement his international law, which opened the discussion that is still prevalent today on how national governments can construct farmers right in line with their existing national legislations.

Dr Adebola stated that the construction of farmers right by national governments instead of the international instruments could create some limitations. She stated that whilst this might be convenient for advanced countries that are sophisticated in terms of technology, financial resources and human resources to design home-grown IP laws for plants (along with other non-IP legal norms and principles that protect the interest of farmers); some other countries that lack these resources might struggle. For example, some countries may consider farmers rights as a special subject and whilst they are signatories to the treaties, they are unsure on how to construct national laws even when they desire to. Whilst the ITPGRFA has sought to respond to this by establishing several frameworks like in-country consultations, some farmers still remain at the disadvantaged end as the provisions still rest with the national governments.

The four papers discussed by the speakers assessed multiple issues which demonstrates the role and impact of IP in technology ranging from climate change, online learning, genetic resources to agriculture. It highlights the importance of IP and technology especially in times of crises such as the pandemic. As the world picks up the bits and pieces left following the pandemic, each industry needs to revisit the IP and technology aspects of their operations to avoid future disruptions and ensure easier transition to the post-pandemic era. The role of IP cannot be underestimated as IPRs do not only cover protection for inventions under patents, creativity and expression under copyrights, trade secrets; it considers even the rights of farmers and the importance of data protection and privacy. Therefore, the debates on the impact of IP in industries would still be relevant in the post-pandemic world.

Published by School of Law, University of Aberdeen

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