[Revised extraction from delivery] See podcast here.
I am very honoured to be here today. I am also deeply touched that so many of you have come here on a Friday night, have made the journey north, or are listening to the live stream.
My academic career stems from a quick look at the University of Edinburgh website while I was working with leading Scottish law firm McGrigors, now Pinsent Masons. I saw a project “Intellectual Property, competition and human rights”. And I thought - that’s what I want to do.
Professor Margaret Ross and Professor Abbe Brown
I am often asked if I miss practice. My favourite memory is getting an interdict at 6pm on the Friday before Christmas, having been instructed a few hours beforehand, being 6 months pregnant and physically unable to run around the office or court. It’s hard to beat. But working with tomorrow’s leaders, from all backgrounds, from all places; empowering students to challenge views including your own; and supporting colleagues and students in building their own pathways, might just do it.
“Law, innovation and power” in the title refers to intellectual property rights. Very briefly, IP rights – e.g. patent and copyright – give the right to control the use which others can make of your innovation. This power does not last forever (putting trade marks to one side, in some cases), is confined to a territory, and some difficult hurdles must be met to get the right in the first place. As students past and present will know, I don’t think IP rights confer a monopoly, but they do give a lot of power.
A patent owner can prevent use by others of a technology which can automatically create an audio version of a book, or a soundless wind turbine which could contribute to reducing greenhouse gas emissions with health benefits for all; copyright and design can prevent reproduction of a special prosthetic leg which would enable more effective performance at the Paralympic Winter Games.
In professional practice, I built a career on enforcing IP rights or arguing that they were invalid or not infringed. The rhetoric of IP in encouraging and rewarding innovation was accepted. The only question was: who should win this time? The idea that the power in itself could be misplaced had, I must confess, never occurred to me.
Yet my particular interest has always been how IP spoke or didn’t speak to other laws. For example, competition law dislikes too much power. There are human rights to health, life, freedom of expression, non-discrimination and sharing in cultural life. There are equality laws addressing discrimination. Climate change law requires the reduction of greenhouse gas emissons, and technology and its transfer, is stated to be a key part of this.
If you look in each of these 4 other sets of law, they do not refer to IP. And IP law does not refer to them. It is tempting to argue that the goals of other laws are much more important than giving power to innovators. That might be so. But alongside its theoretical justifications IP is part of an international treaty within the World Trade Organization (WTO). So the UK does have to have an IP regime as long as it is part of the WTO. And there has not yet been a suggestion that we pull out of that…
Further, IP’s structure and enforcement framework can mean that it is practically more effective than other laws. IP rights tend to be owned by private entities. UK laws (IP not being devolved to the UK nations) gives IP owners the right to go to court – even if it can be costly and slow. In contrast to IP, competition is in the main enforced by regulators, for example the European Commission. There is no control over whether or not they will intervene. Human rights and climate change treaties impose obligations on states.
Given these treaties, states have taken steps regarding climate change, human rights and equality. But they have done so in a different way to how IP has been approached. In the UK, and in Scotland, we do not have pathways for private individuals to raise human rights based court actions against other private entities. Scottish and UK climate change legislation imposes obligations on the state to reduce emissions. There are evolving arguments that the state can be sued if it does not do so. Maybe Scottish activists can be like the several young people in the United States, backed by the Children’s Trust, who are suing the United States in an Oregon court for tougher climate change policy. The basis for their case is written constitutional rights, so the analogy for Scotland may be imperfect. Meanwhile, in England, we will see how the Plan B judicial review action goes.
And in any event the place of IP in these cases, if IP is argued to be blocking any effective action to reduce emissions, is not being explored. So we have 4 different laws, 4 different goals, 4 different enforcement routes. And I would argue 4 different communities which are expert in them and seek to develop them. And all, when engaging with the other field, have a tendency to think the others must just be fundamentally wrong.
But the plot thickens because the fields do have a lot in common. There is a strong view that IP confers power as a reward for innovation and encourages innovation. Competition does not like misuse of power because it thinks this would deter innovation and the pushing of boundaries. Human rights cover rights to property (and have been found by courts controversially for some – to cover IP) see European Court of Human Rights Application 73049/01 and summary. There are also rights to reward of the author. And even if you don’t accept that, innovation and technologies, as indicated in the earlier examples of prosthetics and wind technology, can assist in delivering life, health, equality and sharing in culture life.
Indeed, some of the fields have slowly been drawing closer together, and courts and policymakers have actually enabled other fields to prevail over IP – rather than it simply being felt that this “should” happen. A first event came in the 1990s, when the European Court of Justice considered a composite set of TV listings – by putting together existing lists. The court found, in a competition law case, that refusing to license IP could be abuse of a dominant position. To the IP hardcore, this was a bit like the sky falling in. And I still enjoy the fights which arise in class when we discuss this point.
A second event came at the start of the millennium. The English Court of Appeal considered the publication of extracts of diaries of a former leader of the UK Liberal Democrats, about a possible UK coalition in advance of the 1997 general election. The court found that in rare cases, free speech can prevail over the power of the copyright owner.
A third event involved the Copenhagen meeting of the UNFCCC in 2009. There were strong arguments in advance that IP could have a negative impact on addressing climate change. This didn’t ultimately lead to any action. Too many protests from IP owners and their supporters. The battle on both sides continues. Technology Transfer is a key part of the 2015 Paris Agreement. (The Paris Agreement is analysed in an earlier post on this blog.) But the Paris Agreement doesn’t talk about IP.
And a fourth event was the Miracle at Marrakech in 2013. So called because of the intervention of the Holy See, a new treaty was adopted to bring about easier access to books by the visually impaired – for example, conversion into Braille might not be copyright infringement.
My first contribution to intersections between fields was in a monograph building on my PhD from 2009. Focussing mainly on communications technology and freedom of expression, my research developed a means for IP, competition and human rights to be combined in disputes in the UK jurisdictions. This involves a new concept, the Human Rights Emphasis. All the rights which can be involved on both sides of a dispute were to be balanced. If the Human Rights Emphasis is against the IP owner, and if the underlying technology is unique, the IP owner will not prevail. I also argued that this approach could be consistent with international obligations under the WTO agreement and European Convention on Human Rights. I was delighted when reviews of the book said that it was “heretical”.
As many of you here or listening will know, and even more will find out, the coming to the end of one series of projects brings the question of “what next?” For me, the obsession continued with clashes between legal fields and with the provision of pathways to courts to enable these to be addressed. How could one deliver a fair, holistic outcome to a dispute, which took into account all the laws which might be relevant to it, no matter what type of forum you started in or however the dispute might initially be classified. And why are climate change and equality more seen as public law problems? And how much should this exclude the ability to solve problems based on private power?
My interest in technology and protecting the environment – particularly special parts of the world – had been developing for years. I secured a British Academy grant for a network interdisciplinary project, which led to an edited collection. For me, a new pathway to exploring the links between power of IP, the place of innovation and saving the world had begun.
In 2012 I was delighted to be appointed to the Law School at the University of Aberdeen. I found a welcoming and proactive community, and world leading teaching and researching –particularly in energy, particularly in energy law. The University of Aberdeen also provided the opportunity for me to develop new legal courses in Energy and Innovation, and to work with business school and data management colleagues in providing masters courses with an industry focus.
Dr. Greg Gordon (Head of School) and Professor Abbe Brown
In parallel, another strand was brewing for me. This drew on one of the final projects of the SCRIPT Centre in the University of Edinburgh funded by the AHRC, with which I was proud to be associated for 9 years. Groups of people who would not always work together, were to work on topics on which they would not usually work. I was delighted to be grouped with Shawn Harmon and Charlotte Waelde. We chose to pursue disability, ethics and power, with a focus on visual impairments. It was a timely project.
The Kindle had just been launched… and there were disputes about the extent to which the first version should include voice to text technologies. There are laws on equality and discrimination, but they were not helping battles with private sector IP owners. Suddenly, delivering equality was also going to be part of my future.
Charlotte, Shawn and I then become part of a team led by Sarah Whatley of Coventry, awarded funding by the AHRC in another interdisciplinary project. This explored dance, disability and law (copyright, human rights, medical law, equality). Dance (like disability, like energy) was not really something I had thought about before in my research career. But my interest arose when I heard remarks like “Dance and copyright don’t really talk to each other”. This, I thought, is what I do.
This InVisible Difference project blew my mind intellectually, and personally. It enabled me to engage with the arts in a new way and provided the privilege of friendship with many dance leaders with different bodies. In terms of outputs, I can’t work out if I am more proud of our forthcoming collection (https://www.intellectbooks.com/books/view-Book.id=5286/); our policy briefings arguing for practical change; or the fact that I survived a workshop at a dance conference where you had to actually dance.
And InVisible Difference offered the next step on my journey. At the closing conference I was speaking to Sita Popat, of Leeds, a member of our advisory board. She said she wanted to interview a colleague who had a prosthetic limb, about the extent to which she saw this as an extension of herself or was it separate. Sita was also interested in how this might compare with views of gamers about their avatars. I heard myself say “there is something called the Declaration of the Rights of the Avatar." Sita said – “wow, you are in.” Feeling it would be impolite to say “to what?” I became part of a successful application to the Wellcome Trust for a Seed Award in Identity and Governance of Bodily Extensions.
We interviewed prosthetic users; we held meetings in game; and once again with the team, I became increasingly aware of law’s inadequacies, this time, in addressing questions of identity as it relates to technology.
There are laws relating to medical devices, health and safety, risk management. There are laws relating to new prosthetics and their design, particularly IP law. There are laws relating to equality and human rights – but broadly they do not apply to private companies who make prosthetics.
These parallel relationships mean that equality and human rights laws are not presently taken into account by public sector budget holders in, say, deciding how many different legs a person can get – even if being able to run using a particular type prosthetic leg might be a key part of their new life. Or a person might like to have a diamond studded graphic prosthetic leg, made by a private provider – but this individual might not be able to afford one.
The position one takes to these questions depends on where you start and what you value. Performance scholars, philosophers and ethicists provide a variety of arguments about theories of the person. Law at a practical level actually rarely focuses on the person and questions of identity. Law tends to focus on a fight about a thing – about property, a contract, a misrepresentation of the connections between a person and a product (Rhianna and Top Shop anyone?) or misuse of private information – a hot contemporary topic regarding Harry and Megan.
So law, particularly IP law, confers power on decision makers and on designers of objects, rather than focussing on the identity of people. To recap, then, the power in the title of this lecture actually comes in two forms.
There is the power of the IP owner to refuse to share technology with another, or to charge high prices for the graphic leg, for the soundless wind technology. My issue is not the choices IP owners make regarding this power, but rather the legal asymmetries which deliver it to them.
And there is the power of national and international policymakers to refuse to engage directly with the fact that IP owners – likely private companies – can refuse to share technologies; and that this can have an impact on the ability of states to deliver technology transfer or to share prosthetic or adaptive technologies. This in turn can have a resulting impact on meeting important societal goals which have been the subject of treaty and legislation such as those discussed above.
In this discussion of saving the world and delivering equality, I have set out two apparently different problems and two apparently different sets of legal frameworks and clashes. But the power of refusal of the IP owner and policy maker are present in both. There is also a common solution. The need to redefine relevance. The need to look across legal barricades.
So where now? My first step has a climate change focus, in a monograph. And Edward Elgar, the manuscript will to be with you by September. Honest.
In this book, I take a national focus (as this is where the problems really happen, and also because there is rich work by colleagues exploring this at international level). I argue for legislative changes to national IP and climate change laws. Changes to address the power and impact of IP; to require sharing in some cases; and to engage with the possible role of IP as a defence to a climate change action.
The book also develops court-based solutions. Even within the present legal landscape someone may be brave enough to go to court. There are many examples over the years of people doing this – and in the world of crowdfunding there are many more possibilities. And even within new laws, uncertainties, disputes and court actions will still arise.
The book will argue for new court rules so that the possibility of parallel disputes could be heard together. This perfect storm could involve patented soundless wind technology, a patent infringement action, a climate change action by activists concerned about a lack of activity in a windy area and a planning decision requiring that this technology be used in a new development, without engagement with the patent owner.
Finally, the book will argue for courts in these combined or parallel actions to take new approaches to decision making and statutory interpretation, drawing fields together and delivering coherent outcomes – while trying not to make judges overly creative.
More generally, I hope to use this Chair to argue, and agitate, for engagement with the positive and negative impacts which IP can have on saving the world, and delivering equality. There will be publications, courses (particularly interdisciplinary ones across the University of Aberdeen), interdisciplinary research, local and transnational collaborations, public engagement. Working with – even converting – lawyers, activists and policy makers, and the next generation, will be key parts of this.
The goal is to still have ways of encouraging innovation, rewarding innovation, interpreting IP law and respecting state obligations under IP treaties. But not to enable this to blinker courts and decision makers to other laws. Each laws have their own balances. Differences in enforcement pathways, and the familiarity of judges and lawyers with one set of laws, should not mean that their own type of law will necessarily prevail. Lawyers will always need to specialise, to have a deep focus in a limited number of areas. But we should be aware of the risk of too readily dismissing the principles of other areas of law on the basis that they are for others to worry about.
One might argue that exploring these questions is a luxury. To which I have to say that it is certainly my privilege. And like all academic work it seeks to make a valuable contribution for the benefit of all.
In doing all this, I am pleased to be building on the strong reputation of IP scholarship in Scotland. For example, work is about to being on the fifth edition of our textbook Contemporary IP Law and Policy (details of the fourth edition can be found here). The initial team was Hector MacQueen, Charlotte Waelde and Graeme Laurie. And with Smita Kheria and Jane Cornwell, I am delighted that Marta Iljadica of Aberdeen is now joining as an author.
Also, academic life can, at least in my experience, be a bit of a rollercoaster. It brings lots of highs and lows against the reassuring structure of the academic year. Lots of people have helped and help me on my way.
I am honoured to be working with a talented, committed and friendly group of colleagues in the Law School here. Outside Aberdeen, since the start of my academic career I have been warmly welcomed at national and international conferences in a friendly, supportive – while also frighteningly intelligent – community of scholars: special mentions go to ATRIP and BILETA. And I now have the chance to give something back, as the Law School at Aberdeen is delighted to be hosting the BILETA conference in April 2018.
And outside work, I owe so much to my friends – old and new, near and far. A constant and occasionally necessary reminder of the fact that there is more to life than work, and of what really matters. And above all, thank you to my family.