Intellectual property protection in investment agreements and public concerns

Abstract

The role of intellectual property within the framework of the protection of investments Intellectual property rights (IPRs), being a key element in technology-transfer and production, play a primary role in investment. This means that States, to be attractive towards investors, have to adapt their legislation according to an adequate standard of IP protection. Nevertheless, it may be necessary to introduce limits, through compulsory licences or other measures reducing the use or extent of IP titles, in order to address social needs, public emergencies or health and environmental challenges, which can be generally referred to as ‘public concerns’. The reach and legitimacy of such restrictions represent a controversial issue in the light of IP international law rules and their interference with the foreign investors’ rights, since they have an impact on expected economic rewards. Under the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPs), adopted within the framework of the World Trade Organization (WTO), some margins of discretion are provided which give Members the right to derogate from a rigid implementation of the Agreement, under given circumstances. The TRIPs Preamble preserves the Members’ right to pursue ‘the objectives of national systems for the protection of intellectual property, including developmental and technological objectives’. As a consequence, Member States can balance IPRs for individuals or juridical persons against the need to improve and secure international technology transfer as an instrument for social and economic welfare (Art. 7 TRIPs). Members may adopt and amend their national law ‘to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic development’, provided such measures are consistent with the TRIPs provisions (Art. 8.1 TRIPs).