Report from the 37th ATRIP Annual Conference in Helsinki – “Fairness, Morality and Ordre Public in Intellectual Property”

Setting the Stage

The general objective of the ATRIP organization is to contribute to the advancement of teaching and research in the field of the law of intellectual property (“IP”). The previous annual conference was organized in New Zealand. This year it was time to head north when the conference was organized in Helsinki and the topic was “Fairness, Morality and Ordre Public in Intellectual Property”. As a Finn, it was of course a particular pleasure to see around 160 IP scholars from all over the world in one’s hometown.

On the Stage

The first morning session on Monday kicked off with the overarching topic of “Measuring and Defining Fairness, Morality and Ordre Public in IP Law”. This session was chaired by Graeme Dinwoodie (Chicago-Kent College of Law, USA). Questions discussed were inter alia fairness in international IP instruments as well as public order. The second session, “Fairness, Morality and Ordre Public: What Does it Mean for Authors?” was chaired by Sam Ricketson (University of Melbourne, Australia). In this session, the balance of rights bwetween right holders and the authors were discussed as well as “fair” remuneration for authors. There was also a quite interesting presentation of copyright in street art by Pascale Chapdelaine (University of Windsor, Canada). One of the afternoon sessions had the topic “Fairness, Morality and Ordre Public: What Does it Mean for Groundbreaking Technologies?” and was chaired by Jens Schovsbo, (University of Copenhagen, Denmark). Here the presentations inter alia dealt with AI, blockchain and 3D printing.

Tuesday was kicked off with a panel on “Economic and Non-Economic Shades of Fairness and Morality”, chaired by Justin Hughes. In this session there were presentations by seven scholars, including Juha Vesala (University of Helsinki) who discussed ” Incentive-based Justification for ’Fairness’: Antitrust vs. Intellectual Property” and Henning Grosse Ruse-Khan who discussed non-discrimination rules in IP and trade treaties. The day continued with a panel on copyright from an access and “users’ rights” perspective. This panel was chaired by Christophe Geiger and the session inter alia included an interesting presentation by Péter Mezei, on “The Fairness of Digital Second-Hand Marketplaces and the Future of the Doctrine of Exhaustion”. In the afternoon, there was a topical session on “Fairness, Morality and Ordre Public: What Does it Mean for Confidential Information?”. The morning session on Wednesday concerned fairness, morality and ordre public in patent law. Here, for example patent policy in the age of nationalism and questions related to biosciences innovations were discussed.

Questions and Comments from a Spectator

All in all, the conference was certainly well-organized with very nice discussions sparking quite a few thoughts and ideas. It was nice to meet and have discussions with so many talented IP scholars from all around the world. When it comes to substance, the topic was an important one but quite tricky due to the subjectiveness stemming from the nature of the topic. The notion of “fairness” can indeed be quite subjective unless anchored e.g., to a certain specific provision in positive law. The topics covered a very broad scope of quite general  issues and it was not always easy to find the common denominator. Further, there appeared to be a certain tacit presumption that we need more “fairness” in IP, which colored the discussions. Most scholars probably would agree that laws (including IP law) should be fair, but what was actually not discussed in more detail was why this would be the case in IP law and if so fairness for whom? Inevitably one person / stakeholder could consider something to be fair or unfair, while another considers a certain state of affairs to be exactly the opposite. Also, is “fairness” needed outside the currently existing international framework, i.e. are the current provisions in existing international treaties inadequate – do we need to change the status quo or does the existing framework strike a good balance? Or is the “problem” (if there is one) perhaps more local and country-specific? And if change is needed, exactly what kind of change should be made? I will leave you with these thoughts and have a feeling that this is not the last time the questions of fairness, morality and ordre public will be discussed in IP – looking forward to all the interesting discussions lying ahead.

Vilhelm Schröder

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