Bilateral Trade and Investment Agreements and the Harmonisation of Copyright Law at International Level: Lessons to be Learned from the TTIP

Abstract

The Transatlantic Trade and Investment Partnership, better known under the name “TTIP”, is a bilateral trade and investment agreement that has been negotiated between the European Union and the United States since 2013. The respective administrations on both sides of the Atlantic have several times indicated their desire to resume the negotiations that have been put on hold (but not officially abandoned) after the last US presidential elections. If it is currently uncertain what will be the fate of the TTIP, the topic could be revived as the EU Council in April gave a new mandate to the European Commission to negotiate a Bilateral Trade Agreement with the US, without it being entirely clear what will be the exact scope of the negotiations. More generally, the dynamics of signing bilateral trade and investment agreements with third countries is steadily going forward so that lessons can certainly be learned from the TTIP experience, no matter what happens in the future with its negotiations. The proposed TTIP agreement has given rise to a number of concerns within European public opinion, in particular because of the secret nature of the discussions, which raised questions about the potential contents of the texts and the commitments made on both sides. These concerns recall those expressed at the time of the negotiations on the Anti-Counterfeiting Trade Agreement (ACTA), which mobilised significant concern among public opinion in Europe and ultimately led to the rejection of the Agreement by a large majority in the European Parliament in July 2012. The TTIP, although it obviously has a much broader content than ACTA, likewise contains provisions dedicated to intellectual property rights and more particularly to copyright. Its principal characteristic, however, lies in the inclusion of intellectual property rights in the list of investments protected by a specific section of the agreement. If implemented, the enforcement of this protection would be entrusted to arbitration tribunals or to a special court for the protection of investments that is yet to be set up. Hence the question arises as to whether the regulation of intellectual property by the European Union or one of its Member States, in a way that would affect the scope of the intellectual property rights held by certain large private companies, could be considered as a potential threat to their investments. If this was the case, proceedings could be brought against the EU or one of its Member States, leading to the risk of considerable limitations being imposed on legislators in the necessary implementation of a balanced and effective copyright law in Europe.