WIPOD – Page Points: Transcript of Episode 12

Intellectual Property and Sustainable Development

Jacques de Werra: There are positive ways which can be used by countries and by local legal systems in order to put back these products into circulation and on the market, even if they were initially found to be infringing IP rights. So, I think this is also an interesting and perhaps promising avenue to be explored, and to continue to be explored, when we think also towards the future, as to the future development of the interaction between IP and sustainable development.

Lise McLeod: According to a recent report from the UN Secretary General, we are at the midpoint on our way to 2030, and the Sustainable Development Goals are in deep trouble. A preliminary assessment of the roughly 140 targets, for which data is available, shows that only about 12 percent are on track. The report states that ‘we can do better’.

Lise McLeod: Hello, Page Points listeners. I'm so pleased to have you join us. We are speaking today in relation to our 2024 World Intellectual Property Day, the theme is Intellectual Property and the Sustainable Development Goals: Building our Common Future with Innovation and Creativity.

We are joined by Professor Jacques de Werra, who is the editor of the recently released book entitled ‘IP and Sustainable Development’. The book is published by the University of Geneva, Faculty of Law, where Professor de Werra teaches intellectual property law. For some 14 years now, WIPO and the University of Geneva hold a joint Summer School on intellectual property.

Professor de Werra is also the Director of the Digital Law Center and he teaches in the Master E4S program, Science in Sustainable Management and Technology. Professor de Werra, I would like to say welcome to the podcast.

Jacques de Werra: Thank you very much. Thanks very much for the invitation. It's a privilege for me to be here and to discuss about this very important topic, which basically affects all facets of IP law.

Lise McLeod: The pleasure is mine. Could we begin our conversation by you providing a general outline explaining the interrelationship between IP and sustainable development. How does IP support sustainable development, especially with the fast pace of technological developments such as artificial intelligence, biotechnology, solar panels, autonomous vehicles and the like?

Jacques de Werra: I think what we have to emphasize from the outset is that the interaction between IP and sustainable development are multifaceted. If you think about perhaps the life cycle of an IP right, you can consider that sustainable development can have an impact on all steps of the life cycle at the birth, so to say, of the IP.

What shall be the condition, say, for granting a green patent? And also what subsequent step, which would be the exercise of the IP rights in terms of commercialization, so tech transaction, how sustainable development should have an impact on the way how IP rights can be used.

And also in terms of enforcement, to what extent sustainable development may have an impact on the way how IP rights are being enforced. For instance, against counterfeiting goods, you can imagine a scenario in which instead of destroying those infringing goods, you may want to recycle them in a way, of course, which shall be compliant with protection of IP owners.

One facet as mentioned, is the facet of IP life cycle, so to say. And the other facet, which also confirms the profound impact of sustainable development on IP rights is to realize that sustainable development can have an impact on basically all categories of IP rights. I mentioned just now the case of green patents. So, the question is whether we shall grant as a legal-system easier conditions to grant patents provided that these patents relate to quote, quote, green technologies. So, patents would be covered. Greenwashing is also something perhaps that we may want to discuss more in a few minutes, is another facet of IP rights. It may relate to trademarks, may also relate to unfair competition.

And you can think also about other facets of trademark in terms of eco labels, to what extent we may want to use trademark law and perhaps guarantee trademarks in a way which shall promote sustainable development. So, this other angle is also quite important to keep in mind when we start the discussion is to realize that basically all categories of IP rights may have an impact and may be used in a way that shall support sustainable development.

Lise McLeod: Could we now pass to Olivia Dordain's chapter which covers luxury items, IP and sustainability. She touches on the subject of counterfeiting and argues for the sustainability of luxury icons versus the obsolescence of fast fashion. Would you like to expand on this discussion about the sustainability of luxury goods?

Jacques de Werra: I think perhaps we can connect, if I may, this question with another question, which is addressed in another chapter of the book. In this chapter co-authored by Irene Calboli and Siroos Tanner about circular economy and perhaps upcycling of goods.

I think what is interesting in the luxury industry, of course, this is not the only industry where that can happen, is that you have products which are supposed on design to last for quite extensive periods of time. And you may also have the development that some people may want to update somehow and amend and change and modify those products in order to personalize them. Which triggers the interesting question from an IP perspective, and from a trademark law perspective more specifically, as to whether it's possible and legal to personalize those products in a way that they do not look exactly as they were conceived initially by the luxury brand.

And that touched upon the issue of exhaustion, as we call it, whether it's possible basically to consider that because the product has been put on the market with the consent of the IP owner, in that case, the luxury brand, these IP rights would be exhausted. They should not apply anymore. So there's potential tension to address and which we see emerging in court decisions around the world, where basically the courts have the delicate mission to balance the interests of the IP owner to have, of course, extensive protection of the brand, and, specifically in the luxury industry on the one hand, but on the other hand, to kind of promote innovation and the ability of third party to personalize and to kind of update, to some extent, these products to fit the needs and the interests of the audience, of the public. And why is that something that may have a specific relevance for the luxury industry? Because precisely these luxury goods may have the potential to have a longer life, so to say, if you compare to other products for which the issue would not arise, at least in a similar manner.

Lise McLeod: Both Olivia and Nicolas Binctin discussed the concept of greenwashing, which you briefly referred to earlier, and it seems to have been an issue for the past 20 years or so. Could you explain its meaning and how it's still an issue today?

Jacques de Werra: So indeed, as you just mentioned, this is not a new concept, but what we see also if we look at what has just been adopted at the EU level, there is a new directive which has been adopted. And if we quote the oicial title of that directive, which is about and I quote, empowering consumers for the green transition through better protection against unfair practices and through better information. End of quote. What we see is that there is increased perceptions that consumers must be protected against unfair practices.

So this is not new. And what is of that leads, of course, to the needs to define what is greenwashing is basically to claim, but falsely claim, that your products and services would be green and would perhaps not be polluting the environment and would be in line with sustainable development. And we see a lot of cases being brought before courts in many countries by which certain companies have indeed been found to be violating unfair competition law in general by claiming, for instance, there are a few cases about airline companies that they would be flying over without negative impact on the environment and these claims are held to be unfair.

And what is new, even though the issue as such is not new because it's basically an unfair competition, what is new is that, as I was mentioning, we have specific regulations coming up which precise and clarify under what circumstances we may consider that a claim is admissible because it would not be greenwashing or in what circumstances that might be considered as being a violation of the competition because that would be considered as greenwashing. So in a nutshell, what we see emerging is a kind of a more specific regulatory framework which is designed to specify what circumstances shall constitute greenwashing and that's new even though as you mentioned the general theme as such is basically unfair competition which is one of the classical areas of course of IP law.

Lise McLeod: The next chapter, written by WIPO’s own, Edward Kwakwa and Peter Oksen covers our organization's program WIPO Green. And WIPO Green, as you know, for the listeners, is a database of needs and green technologies. In your opinion, Jacques, how can innovation and technology address our most pressing global issues?

Jacques de Werra: I think innovation as such and technology can definitely contribute a lot to many pressing challenges that we have in order to develop new solutions to address certain societal issues. And I think what is important to realize, and this is why WIPO Green is a great initiative, is that one thing is to promote innovation in saying that we should grant potentially a privileged condition as we were discussing earlier, patents on green technologies in a faster and perhaps facilitated way. So, protecting innovation as such. But another thing which is also very important is to make sure that those technologies which are protected can be put to use.

So, the issue here is to facilitate transfer of technology and to find ways to share technology. So, one aspect is protecting technologies and protecting innovation. The other aspect is sharing innovation and making sure that we create a system which is supportive of this transfer of technology. And what is of value from my perspective is to create marketplaces where basically you can share also information about the existing technologies and perhaps facilitate those operations of licensing and tech transfer in general. And I think this is also, of course, for me the opportunity to thank WIPO and specifically, again, Edward Kwakwa and Peter Oksen for the chapter, but more generally, WIPO for the opportunities to interact and to work together specifically also as materialized in the book.

Lise McLeod: Irene Caboli and Siroos Tanner ask the question in their chapter, does intellectual property promote or hinder sustainability? And they answered the question through the case of upcycling. In your opinion, how can IP be navigated in a circular economy?

Jacques de Werra: Upcycling and the circular economy is one of the potential challenges for the IP system that arises when thinking about promoting sustainable development. And as we briefly discussed earlier, the challenge is basically to find a proper balance between the interests and the need for protection of IP owners who have created a certain product, say a watch, for instance, and on the other hand, the possibility to ensure that third parties may, if this is admissible on the trademark law, may modify, say, the watch in order to personalize it and upcycle it in a way or another.

And I think if we go even beyond this example of a watch, I think one interesting challenge which arises when talking about the interaction between IP and sustainable development is also to think about another category of IP rights, which is design rights and design law for which there is also quite a stimulating and interesting discussion as to the scope of IP protection for design rights versus possibility and right to repair goods. And we see basically the same issue and the same need to find a balance between competing interests.

On the one hand, the IP rights of the owner of the design, which would claim to have a broad control over what may happen with the product which is protected by the designer on the hand. And on the other hand, the user of this design and the goods which are protected by the design, who may want to have the rights to repair those goods without interference from the IP owner. So we see that, and this is what somehow comes also from the joint paper of Irene Calboli and Siroos Tanner to see how you can find mechanism by which we end up with a system which somehow combines and balances adequately and equitably the respective interests of the stakeholders.

Lise McLeod: The final chapter of the book looks at the TRIPS agreement and the sustainable disposal of IP infringing goods. Do you also cover the sustainable disposal of items with your students? And if yes, do you have an example that you could share with us?

Jacques de Werra: So this is another interesting example of the broad range of potential application of the interaction between IP and sustainable development. But as I was mentioning at the beginning of the discussion, this is somehow at the end of the life cycle, because it's at a time when you enforce or the IP rights owner enforces its rights against an infringer. And there's a finding of infringing. We're talking perhaps about goods which are counterfeited goods. And the question, the ultimate question is what do we do with these goods? Do we recycle them? Can we recycle them? And if yes, under what condition and what Wolf Meier-Ewert has done. And this is also the opportunity for me to say that it was a privilege also to welcome someone like Wolf coming from WTO and also to say if I look at the book that I'm very happy that we had various perspectives coming from practitioners, coming from academics and also from of course the leading IP institutions, WIPO of course, but also WTO with the contribution of Wolf Meier-Ewert.

And this shows, and this basically raises the question, this is what Wolf Meier-Ewert has explored in his paper, to what extent the international IP framework may have a role to play and what is the freedom which is left in order to kind of manage this sustainable disposal of IP infringing goods. And in terms of example, and also that I do indeed discuss and mention in class with my students in this E4S program, is certain local regulations by which there are creative ways which have been set up in order to facilitate the upcycling, including for artistic products, to basically recycling those initially infringing goods, IP infringing goods in a way which can be redesigned.

Of course, subject to the full compliance with the requirements of the IP protection at the international level. But there are positive ways which can be used by countries and by local legal systems in order to put back these products into circulation and on the market, even if they were initially found to be infringing IP rights. So I think this is also an interesting and perhaps promising avenue to be explored, and to continue to be explored, when we think also towards the future, as to the future development of the interaction between IP and sustainable development.

Lise McLeod: Now that is very promising. Any reduction in waste is most welcome.

Lise McLeod: Professor de Werra, I'd like to thank you for your time and input today. I know that our listeners will really appreciate hearing what you have to say about these subjects and to then read further when they get a copy of the book in their hands or on their screen. Thank you for today.

Jacques de Werra: Thank you very much for the invitation again and look forward to future opportunities to discussing this interesting issue.

Lise McLeod: I hope that you enjoyed our conversation about sustainable development and its relation to intellectual property in connection to green technologies, upcycling, greenwashing and more. As previously mentioned, today’s book can be found in our Knowledge Repository. This conversation is also connected to our 2024 World IP Day campaign where you can learn more on our website.

Until next time, and the next Page Points, bye for now!