Copyright and Data as Investment – A Preliminary Analysis of Einarsson v Canada –

Abstract

Only about a decade ago, international investment law and intellectual property law had very little points of intersection. Within the last decade, a number of high profile investor state dispute settlement cases stemming from intellectual property rights as covered investments have been arbitrated within the international investment arbitration framework. The latest of these cases is that of Einarsson v Canada, an investor state dispute claim based on copyright and trade secrets as covered investment. This article provides a preliminary analysis of the Einarsson case. Part II describes the factual background of the case, including the nature and character of seismic data. Part III analyses the standards of protection that the claimants argue that Canada has breached in the context of the case. Part IV analyses the requirements for copyright data to constitute investments, in context of existing case law. Part V provides closing remarks and lays out potential outcome of the case and the potential takeaways from the proceedings so far. While the dispute is still in early stages, the case has the potential not only to provide further guidance on whether and when these types of IPRs would constitute investments under an international investment treaty but also to provide insights on the applicability of the relevant principles to data. These questions are pertinent as the intersection between IPRs and international investment regime is growing and will likely to continue to do so. There are several reasons for this. First, the IPR regulation, enforcement and dispute resolution seem to be shifting from the WTO-based framework to IIA regime. Second, the importance of data as assets in the current digital economy cannot be overstated. Furthermore, as the Internet platform giants and social media companies grow exponentially and tighten their grip on market dominance, competition regulators around the world are trying to strengthen their oversight of these companies including regulatory measures aimed at anti-trust practices. That the data-reliance-heavy tech giants may resort to ISDS claims challenging the state’s regulatory measures and demanding compensation is not a far-fetched possibility.