House of Intellectual Property / Powers of Intellectual Property: �An analysis of the European Union’s engagement with International Intellectual Property Law through the prism of a trade agreement with the mutant nation of Krakoa.

Gikii Conference

September 2021

Dr. Liam Sunner

l.sunner@qub.ac.uk

Queen’s University Belfast

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Some Qualifying terms

• There will be spoilers for recent X-men related books
• Krakoa refers to the island nation, not the specific mutants, unless otherwise stated
• We assume the term human rights will apply equally to Mutants
• There was nothing to suggest that Krakoa has ratified the WTO Agreement, TRIPS, nor any of the WIPO Treaties.

EU competences: External competence on IP

• The competence of the EU went through various changes across the Treaties
• This was clearly seen in relation trade and external engagements
• Significant questions remain regarding the precise nature and extent of the EU external competences

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EU competences: External competence on IP

• The EU held two key areas of external competence in relation to trade
• In relation to the creation of the Common Commercial Policy (CCP)
• In areas related to the EU’s ability to establish Associated Agreements with Third Countries

The Move Towards TRIPS-Plus-Plus and the Search for a Balance

• IP began to occupy a more visible and contested area of negotiation
• The EU agreements mirror the global rise of bilateral and multilateral agreements, including many new or expanded IP protection provisions
• TRIPS-Plus provisions were still insufficient
• Lead to a further increase in protection levels

The Move Towards TRIPS-Plus-Plus and the Search for a Balance

• The enhancement of IP protection are also the result of internal EU developments
• The external competences of the EU had significantly expanded with the Treaty of Lisbon
• A significant level of development of what constitutes both IP protection and the enforcement of IP measures

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Krakoan Response

• Within the Krakoan jurisdiction, there is nothing to indicate the operate nor acceptance of the “traditional” understanding of IP elements
• However, in external jurisdictions, there is records of Krakoa following both domestic and international laws through its X-corp, its Government, and its individual citizens
• 3^rd Law is “Respect this sacred land”

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Krakoan Response

• Why should Krakoa accept the external influence
• Colonial/ Westernization of International law argument?

What the research suggests

• The original level of protection of ‘adequate and effective protection’ of IP is no longer appropriate due to the complexities of IP and the globalised nature of trade
• The EU has greater competence to act (and later steer) trade and IP in the external sphere
• The competence to act regarding commercial elements of IP have also been greatly expanded

What the research suggests

• The EU has an obligation to include human rights concerns in its trade policy but does not have the competence to act in this field
• The EU can introduce higher human rights obligations, while still being proportional to IP protection measure

What the research suggests

• Previously the overarching trade concerns of the trade focused agreements tends to prevent or strongly mitigate the inclusion of such obligation, but with Krakoa this will not be the case.
• Impact going forward

Thank you for your time��