Hello, my name is Abbe Brown and I'm a Professor in Intellectual Property Law at the University
of Aberdeen in Scotland. I'm also honoured to be a member of the World Commission on
Environmental Law and to have formed part of the delegation of the International Union
for Conservation of Nature at the Intergovernmental Conference on Marine Biodiversity of Areas
Beyond National Jurisdiction at the United Nations. We call that the BBNJ process.
In this video I'll be sharing some information about intellectual property rights which I
will call IP rights.
Other videos in this series will explore marine biodiversity more
from a scientific perspective and also draw together IP rights and science and explore
some conflicts, some synergies and why we think it's important to properly embed and
explore IP rights within the BBNJ agreement.
IP rights are private rights which aim to reward and encourage innovation and investment and creativity.
Important rights which we will be exploring here are patents, copyright,
database and trade secrets. IP rights are rather unusual if one is not used to them.
They do not relate to the specific item which might arise from the innovation or creativity,
for example a drug, a database, a book, a piece of diving equipment or something to
analyse the DNA on the seabed. But rather it restricts who can actually reproduce or
use those things. So, if the IP owner does not agree, no one else can make that medicine,
no one else can access that database. So working out the proper place of IP within the BBNJ
agreement is really important in ensuring how one can meet its goals.
IP rights have two bases: one in theory and one in international treaty. For centuries
there have been arguments that one needs to confer this right to control the results of
innovation and creativity, because otherwise if someone else could simply use your work
why would anyone ever develop anything and why would anyone ever invest in it. Since
the 19th century more and more countries have been agreeing to take part in international
treaties by which they say that they will protect intellectual property rights.
That was very established; however, from the mid-1990s intellectual property rights were introduced
into the international trade agreement through what we call the TRIPS agreement of the World
Trade Organisation.
This meant that the wide number of countries who were part of the World
Trade Organisation had to protect intellectual property rights and this had some really quite
significant implications for encouraging innovation and also access to the results of it, particularly
in important areas such as health and communications.
Patents are for 20 years and they give the right to stop anyone using the invention,
or something similar to it, without the consent of the patent owner. This is even if they
didn't know there was a patent, or they didn’t mean to infringe any of the rights. So this
is very powerful and it's often called a monopoly.
Copyright is a longer right, often it is the
life of the author plus 70 years. It does however confer a little less protection.
It gives the right to control the reproduction of the work or something similar to the work,
online or in the real world. However, there must be a copy. So if someone genuinely, independently
wrote something which is very, very similar then that will not infringe copyright.
Databases which are a little less widespread, not all countries have chosen to introduce
them but importantly the EU has, they last for 15 years and they give you the right to
control the extraction or utilisation of the whole or a substantial part of the database.
Trade secrets can last forever so if information is secret, and we will discuss that a little
more shortly, then the controller of that information can stop anyone make any use of
that information without their consent. Copyright, database and trade secrets are
unregistered rights so as long as you've met these thresholds and of course can prove it,
then those rights will exist.
Patents are registered rights and you have
to apply to the relevant office.
For a patent you have to show that your invention is new, as in never done before anywhere in
the world, inventive or non-obvious, almost like an intellectual leap from what has been
done elsewhere in the field, to be capable of industrial application, actually being
able to be used from a practical and functional way. And also details on how someone else
can make your invention must be shared with the world.
For copyright the work must be original. This means a lot less than newness from the point
of view of a patent and what it means can vary in different countries. It can range
from not being copied from the work of someone else and you put some hard work into it yourself,
to having an element of intellectual creation.
For database rights there must be substantial
investment in the obtaining, verifying and presenting the contents of the database.
And for trade secrets the information must not be in the public domain and the person
who we are saying has disclosed that information must have known that it was confidential and
the reasonable person would have thought that it was so.
Building on the fact that treaties impose obligations on states to have rights, the
rights which are actually heard are national rights or sometimes regional rights. So this
means that IP owners have a portfolio of applications across the world. For the unregistered rights
they simply exist, but for the registered patent right innovators have to decide in
which country they are going to apply for their right. This can be a very expensive
process and it’s also a very important decision to make. As we saw, patents have to be new.
Once you have a patent in one country it is no longer new so you simply cannot add one in later.
Also part of the national system of rights, it is possible for countries to have some
exceptions on the power conferred by the rights. This is in addition to the time limit which
we already saw. And this reflects some concern that while we are rewarding invaluable innovation
for society, perhaps it is not such a good thing for there to be so much private control
over it. Equally, if one imposes far too many exceptions it may be argued that there would
be no incentive at all.
This has been recognised in particular in the possibility of compulsory
licensing in relation to medicines, and educational exceptions in relation to copyright and database.
So, many countries have chosen to have some exceptions and are aware of this careful balance
which exists within the IP framework. But it's also worth noting that some think that
any limit on the power of the IP owner is problematic and in trade and investment agreements
there are examples of countries being required to agree that they will not have any exceptions
on their IP rights.
The debate about the benefits and disadvantages of intellectual property rights goes very,
very deep. We also see arguments that we don't perhaps need to have them at all and setting
aside the fact that from a legal perspective there must be the right to have these rights,
innovators and creators are of course not obliged to have them or to rely on them. We
have also seen in situations where there may not be a financial market to encourage say,
a pharmaceutical company to develop a product, other ways of encouraging innovation have
been developed. A notable example is organisations such as one example, the Gates Foundation,
have been innovative in finding new ways of developing solutions to less profitable diseases
such as river fever or malaria.
If we look in areas such as education and communications,
we have seen a very strong embracing of a sharing model through Creative Commons licences.
However, it must still be borne in mind that if we are ever finding a profitable economic
market for a product, be that for a medicine or working with communications, working with
education, working with information, it is highly likely that we will see patents being
applied for and we will see copyright and database rights being asserted.
So it is extremely important as we move forward in the BBNJ process to work out exactly where IP rights could
be relevant and how we can work most effectively with them.
I hope you find this video useful,
thank you.