Investigator:
Gabriel M. Lentner

Abstract:
International investment law is expanding further into the intellectual property regime. Following high profile cases in which investment tribunals decided disputes involving trademarks and patents, copyrights and data have become the focus. In “Einarsson v. Canada”, the claimants argued that Canada confiscated their intellectual property rights in seismic data through legislation and government action, violating investment protection standards provided for in NAFTA. This is the first case, in which copyright and data issues have arisen in investment arbitration, so the tribunal’s decision will have broad implications for the development of this area of law. A thorough analysis of the award, which is expected to be delivered soon, will be conducted in light of existing case law. This research project aims to analyze the many unresolved questions relating to IP protection under investment law. The legal issues range from whether and under what circumstances copyrights and data constitute a covered investment under international investment law to the extent and contours of the level of protection offered to those investments under international law, as well as its relationship with domestic law and international and multilateral IP treaties. The case also showcases the ongoing expansion and propertization of IP protection through investment arbitration, from patents and trademarks to copyrights and data. The project thus also seeks to shed light on this phenomenon with a view towards implications for transatlantic copyright and data protection issues.”