IP in War Time and International Tensions – GDE 36 Report

The 36th Global Digital Encounter (GDE) addressed the challenges and evolving landscape of intellectual property (IP) rights in the context of war and international tensions. The session analyzed the impact of geopolitical conflicts on the development of IP systems and explored potential responses and safeguards for IP rightsholders and affected countries. The discussions encompassed issues such as the fragmentation of international IP harmonization, the impact of technology export restrictions, and the redefinition of the role of governments in regulating IP in times of crisis.

Objectives:

• Understand how international tensions and wars impact the functioning and harmonization of IP systems.
• Examine the effects of technology export restrictions on IP rights and innovation.
• Discuss safeguards and strategies for IPR holders and countries affected by conflicts.
• Analyze how open innovation, compulsory licensing, and knowledge-sharing models can evolve under current rivalries.

Panel Members:

• Professor Peter Yu: Regents Professor of Law and Communication and Director of the Center for Law and Intellectual Property at Texas A&M University.
• Gabriele Cifrodelli: Researcher at the University of Glasgow, CREATe Centre, UK.

Moderator: Andrea Valdo Mocchi: Academic Fellow and Teaching Assistant of Intellectual Property and Competition Law at Bocconi University.

Additional Contributions by GDE Members: Prof. Laurent Manderieux, Prof. Manuel Desantes, and Prof. Javier Fernández-Lasquetty.

Key Discussions:

1. International Harmonization and IP in War Times:

• Laurent Manderieux emphasized how war and international tensions slow down global efforts to harmonize IP laws. He pointed out that geopolitical conflicts tend to fragment the IP landscape, leaving rightsholders in conflict zones vulnerable to diminished protection and enforcement mechanisms.
• Javier Fernández-Lasquetty supported this by referencing historical cases during World Wars where IP agreements were suspended, leading to the seizure of foreign IP rights. He highlighted how these wartime precedents still inform today’s handling of IP during conflicts.
• Professor Peter Yu emphasized that conflicts and international tensions create fragmentation in the international IP system. He noted that the disruptions caused by war, such as technology export restrictions and seizures of IP assets, lead to a breakdown in international harmonization. However, he argued that some conventions, like the Paris and Berne Conventions, were designed to ensure IP protection even during conflicts, reflecting a historical resilience in the international IP framework.
• Gabriele Cifrodelli highlighted the challenges of aligning IP norms during emergencies, drawing parallels between the war context and the COVID-19 pandemic. He noted that during such crises, international coordination breaks down, leading to what he called «IP nationalism,» where countries prioritize national interests over international cooperation.

2. Technology Export Restrictions and IP Rights:

• Professor Yu explored the implications of technology export restrictions on IP rights, explaining that these restrictions often undermine the ability of companies to protect and leverage their IP in foreign markets. He pointed out that Article 73 of the TRIPS Agreement provides a national security exception, which countries may invoke to justify such restrictions. However, he cautioned that overuse of this provision could weaken the global IP system.
• Laurent Manderieux echoed these concerns, noting that in times of crisis, governments prioritize national security, further complicating international coordination on IP enforcement. This creates a fragmented and less predictable environment for IP rightsholders globally.
• Andrea Valdo Mocchi added that export restrictions are not only a tool for national security but also serve as a means of economic warfare. He argued that this dual-use nature complicates international efforts to regulate technology transfers, leading to increased tension between innovation and security.

3. Compulsory Licensing and IP Adaptation:

• Gabriele Cifrodelli discussed the role of compulsory licensing in global crises, noting that while it is a useful tool for ensuring access to essential technologies, its application remains controversial and often cumbersome. He referenced the example of compulsory licensing during the COVID-19 pandemic, where the process was deemed too complex to implement effectively.
• Professor Yu echoed these concerns and suggested that compulsory licensing should be reconsidered and potentially restructured to be more adaptable during crises. He also pointed out that the focus should be on long-term reforms, arguing that reactive measures during a crisis are less effective.

4. The Role of IP in Post-Conflict Rebuilding:

• Gabriele Cifrodelli advocated for more open innovation models during global crises, warning that the push toward secrecy—especially trade secrets—could hinder progress. He encouraged a governance model that balances IP protection with collaborative knowledge sharing.
• Professor Yu noted that during and after conflicts, countries must decide whether to maintain high IP standards to facilitate international integration or adopt more flexible IP measures to support rebuilding efforts. He cited the case of Ukraine, where maintaining strong IP standards could ease its integration into the European Union post-conflict.
• Andrea Valdo Mocchi added that post-conflict IP policy must balance between incentivizing foreign investment and protecting local industries. He suggested that IP strategies could serve as a tool for economic reconstruction, provided they are aligned with broader developmental goals.
• Laurent Manderieux and Manuel Desantes discussed how IP could play a pivotal role in post-conflict reconstruction, with affected countries needing to balance strong IP protections to attract foreign investment with flexible policies that encourage local innovation.

5. Open Innovation and the Knowledge Commons:

• Gabriele Cifrodelli argued that international tensions could drive a shift toward increased secrecy and protectionism, undermining open innovation models. He advocated for a «governed knowledge commons» approach, where IP rights are managed to facilitate collaboration and knowledge sharing without undermining the proprietary interests of creators.
• Professor Yu agreed but cautioned that any move towards open innovation must be carefully managed to avoid a «tragedy of the commons» scenario, where shared resources are depleted without adequate governance.

6. Role of Governments and Collective Management:

• Manuel Desantes emphasized that governments often take an increasingly interventionist approach to IP management during conflicts. He warned that while this might provide immediate solutions, it risks creating long-term challenges for the global IP system.
• Javier Fernández-Lasquetty noted that Collective Management Organizations (CMOs) face new challenges during conflicts, particularly in managing foreign IP rights and ensuring that creators are fairly compensated even in war-torn regions.

7. Global Standards and Regulation for AI and IP:

• Professor Yu and Gabriele Cifrodelli discussed the need for global standards in the context of AI and IP, particularly for text and data mining exceptions. They noted that differing approaches in the US, Europe, and Asia complicate the creation of a unified standard, leading to «AI training shopping,» where companies relocate to jurisdictions with favorable regulations. They called for a balanced global approach that respects both the rights of creators and the need for technological advancement.
• Manuel Desantes called for stronger international cooperation to establish global standards that would prevent fragmentation and ensure that AI development does not exacerbate inequalities in IP protection.

Conclusion:

The panel concluded that the global IP system is at a crossroads, facing unprecedented challenges due to ongoing conflicts and international tensions. Laurent Manderieux and Manuel Desantes emphasized the urgency of preemptive actions, encouraging international bodies to start negotiating frameworks for future conflicts and emergencies. Javier Fernández-Lasquetty highlighted historical lessons that inform today’s discussions on IP during wartime, stressing the importance of balance between national security and international cooperation.

The speakers agreed that while harmonization remains a goal, the need for flexible, context-specific strategies is crucial for navigating the evolving IP landscape during conflicts. They emphasized reforms in compulsory licensing, enhanced government roles, and a balanced approach to open innovation as essential components for the future of IP in times of crisis.