Investigator:
Gabriel M. Lentner

Abstract:
International investment law is expanding further into the intellectual property regime. After high profile cases, in which investment tribunals decided disputes involving trademarks and patents, copyrights and data are next. In Einarsson v Canada, the claimants argue that Canada – through legislation and government action – confiscated their intellectual property rights in seismic data in violation of investment protection standards provided for in NAFTA. This is the first case, in which copyright and data issues arise in investment arbitration, so the tribunal’s decision will have broad implications for the development of this area of law.

Against this backdrop and on the basis of existing case law, this research project aims to analyze the many questions relating to IP
protection under investment law still unresolved. The legal issues range from the question, whether and under what circumstances do 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 and its relationship with domestic law and international and multilateral IP treaties. The case also showcases the continuing propertization and expansion 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.