Is a multilateral agenda on intellectual property enforcement realistic and achievable?
- Intellectual property enforcement, which describes a weighing and balancing process for the implementation of intellectual property rights, is a priority issue in the international agenda.
- National authorities can adjust international norms on intellectual property enforcement as to guarantee an efficient, fair, and balanced enforcement of rights.
- Debates in the area of enforcement connect closely to discussions revolving around substantive intellectual property norms. Access to information and to vital products are among the topics that both substantive and enforcement norms alike influence.
- Fundamental principles of balance and fairness and the widespread adherence to human rights of relevance to enforcement are the basis to advance an agenda for multilateral normative action in the area of intellectual property enforcement.
Norms on intellectual property enforcement have a capital importance in any legal system. From a practical point of view, they determine the effectiveness of the system, thus transforming rights and obligations of substantive content into tangible entitlements. They regulate, among other aspects, the reaction to infringement, the consequences of infringement, and who is to adjudicate.
They are thus comparable to the gearwheels of a clockwork: substantive rights and obligations are subject to the provisions found in enforcement related sections of national statutes and international treaties, which determine the method for implementation and shape the scope of substantive protection. Aspects such as the conditions for awarding an injunction, or the methods for estimating damages awards, severely influence substantive rights, their power to exclude and economic value.
Since the Uruguay Round of multilateral trade negotiations (1986–1994), intellectual property enforcement is a priority issue in the international intellectual property normative agenda. Multilateral, plurilateral, and bilateral treaties regulate nowadays numerous aspects of intellectual property enforcement and set up international diplomatic and jurisdictional bodies in charge of overseeing the implementation of the obligations set forth therein. Such an objective is achieved either by the activation of dispute settlement mechanisms or through monitoring and reporting systems. While the proliferation of dispute settlement bodies is a sign of dynamism and robustness of the system, it may also bring with it problems of forum shopping and jurisdictional overlaps.
The international normative developments in the area of enforcement have been accomplished by means of the intense transplantation of intellectual property norms through a range of heterogeneous channels. While there is nothing inherently negative in using experience gained in other nations when developing new intellectual property norms, the pattern observed of partially transplanting intellectual property statutes, not taking into account the overall balance existing in the original norm, is puzzling.
In actual practice, biased norms militate against the interests they allegedly intend to protect: not only rightsholder may one day become intellectual property infringers, but biased international norms face rejection by the public and deeper legitimacy challenges. Plurilateral initiatives in the intellectual property enforcement domain, in particular the Anti-Counterfeiting Trade Agreement, exemplify such counter-effect.
Dynamism, flexibility, and the broader legal order
Enforcement describes an action, not a preset state of things, a pre-established outcome or a situation where a homogeneous implementation of the same norms exists. Intellectual property enforcement is hence better understood as a process, a weighing and balancing process for the implementation of intellectual property rights.
While the right to exclude is the most visible aspect of intellectual property rights, under an instrumentalist understanding of intellectual property law exclusion is just a mechanism for the fulfilment of broader policy goals. Contextualisation within the broader legal framework, and due consideration of public interest, fundamental rights, competition, and free trade principles are key in the weighing and balancing process to enforce intellectual property rights.
In the majority of occasions, norms integrating the global regime for the enforcement of intellectual property rights leave national authorities ample space for adjustment. Even if the drafting of international rules is frequently vague and may lack balance, authorities can still adjust intellectual property enforcement norms as to guarantee an efficient, fair, and balanced enforcement. The combination of comparative intellectual property law and fundamental rights is the most productive approach for that purpose, within the framework of broader policy goals and general principles of law – notably the principle of proportionality.
The intellectual property regime interacts with general principles of law and with norms belonging to other legal systems, including those touching upon competition, human rights, trade and development. The differentiation between primary and secondary norms, the principle of systemic integration and the understanding of enforcement as a weighting and balancing process for the implementation of intellectual property norms are key aspects to manage the relationship between intellectual property enforcement, other international regimes and the broader legal order.
In light of this contextualised approach to intellectual property enforcement, it comes as no surprise that debates in the area of enforcement connect closely to debates revolving around substantive intellectual property norms. Access to information and to vital products, for instance, are among the topics that both substantive and enforcement norms alike influence.
Certainly, there are also cases where enforcement norms bear an independent relation to fundamental rights. In the area of civil enforcement, the rights to privacy and due process are of relevance when it comes to evidence and measures for the preservation of evidence. Likewise, due process and equity considerations are central to the award of interim injunctions. In turn, broader societal interests may determine the award of a final injunction, while proportionality and due process considerations also shape the award of damages and corrective measures. Similar considerations apply to border enforcement, whereas proportionality, legal certainty, and procedural justice are of particular relevance to criminal enforcement.
New factors and challenges
Economic analysis of intellectual property enforcement may play a relevant role in the design of future norms. The scale and impact of intellectual property infringement are among the central topics of interest for policymakers. It could not be otherwise, given the economic, scientific, and cultural relevance of intellectual property.
Economic analysis is helpful to both designing and implementing enforcement norms. In the first case, quantification of all relevant factors, positive and negative, costs, and impact on welfare, gives a sense and a guide for normative action. In the second case, economic impact is closely related to fundamental legal principles impacting remedies, such as proportionality and unjust enrichment – a principle putting a cap on damages awards.
Present and prospective scenarios must consider digitalisation and the current process of automation, centralisation, and delegation of authority in intellectual property enforcement. The expansion of automated algorithmic enforcement, the application of big data analytics to the enforcement of intellectual property rights, the promising applications of blockchain to intellectual property enforcement, and the development of devices that automatically enforce intellectual property, are all meant to boost the efficiency of intellectual property enforcement.
At the same time, and in the same way that artificial intelligence challenges traditional concepts of authorship and inventorship, it also raises profound challenges to the concept of enforcement – largely based on the centrality of human intervention – and obliges to reflect about authority, due process and accountability.
Most observers predict a prolonged stalemate of multilateralism and the parallel advancement of bilateralism and plurilateralism, including in the intellectual property enforcement domain. While such a situation is possible, it would be based on a flawed approach to enforcement. While international debates on enforcement have been frequently polarised, states at different levels of socio-economic development and legal traditions share much more than one would expect when observing those debates.
In fact, fundamental principles of balance and fairness are widespread, as well as the adherence to numerous human rights of chief relevance in this area. It is consequently possible and realistic to advance an agenda for multilateral normative action in the area of enforcement if the foundations of such an agenda are rightly identified: a common understanding of the systemic role of enforcement in the broader legal system, the fundamental principles of balance and fairness, and the guidance and limits resulting from fundamental rights entitlements.
A detailed and documented version of this post can be found here.
Xavier Seuba is Associate Professor, Trainings Coordinator, and Director of the Diploma of Patent Litigation in Europe of the Center of International Intellectual Property Studies (CEIPI) of the University of Strasbourg (France). He is author of The Global Regime for the Enforcement of Intellectual Property Rights, Cambridge University Press, 2017.