International investment law and arbitration is ever expanding crossing into other legal regimes and raising novel legal questions. Among this expansion, cases involving intellectual property (IP) have been brought before investor-state dispute settlement (ISDS). So far, decisions have been rendered regarding trademarks and patents – data is next. In Einarsson v Canada, the claimants argue that Canada – through legislation and government action – confiscated their IP rights (IPRs) in seismic data in violation of investment protection standards provided for in NAFTA. This is the first known case, in which a copyright and data dispute is brought before investment arbitration, so the tribunal’s decision will have broad implications for the development of this area of law.

On the basis of existing case law, this paper aims to analyze the many questions relating to data 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 (specifically under the fair and equitable treatment, FET, standard and the prohibition against uncompensated expropriations) and its relationship with domestic law and international and multilateral IP treaties. The case is also illustrative of the continuing propertization and expansion of IP protection through investment arbitration from patents and trademarks to copyrights and data. The paper thus also offers a case study for the general critique offered by some commentators in this vein.

A version of this paper has subsequently been published in the Journal of Intellectual Property Law & Practice, Volume 18, Issue 6, June 2023, pages 446–454, https://doi.org/10.1093/jiplp/jpad038.