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1. Reforming Standard Essential Patents: Trade, Specialisation, and International Jurisprudence

Author:
Fredrik Erixon and Oscar Guinea
Publication Date:
04-2023
Content Type:
Policy Brief
Institution:
European Centre for International Political Economy (ECIPE)
Abstract:
The European Commission is considering a radical overhaul of the system governing Standard Essential Patents (SEPs). A leaked proposal suggests that the Commission wants to take control over the registration of SEPs, take efforts to regulate their essentiality, and intervene in negotiations over royalty rates if parties do not come to an agreement. The underlying assumption is that such a system will benefit SEP implementers and the European economy, and that the common holders of SEPs will be cut down a size or two. The logic behind this policy is that, since there are more SEP implementers than holders, any change in favour of implementers will have a net positive effect on the EU economy. However, this is doubtful. The EU is a R&D powerhouse for many of the technologies protected under SEPs and since most of the global production of the goods using these technologies is done outside Europe, the EU is a net exporter of innovation and a receiver of revenues from the licensing of these technologies. Using data on trade, specialisation, and market revenues, this paper comes to a different conclusion: the EU economy is likely to be a net loser if the balance between holders and implementers is changed. Moreover, there is a general and fundamental interest for Europe to preserve a system of standards and SEPs that allows it to punch above its weight in international policies and practices in standards and patents.
Topic:
Reform, European Union, Trade, Patents, Specialization, European Commission, and Jurisprudence
Political Geography:
Europe

2. Of Dark Clouds and  eir Silver Linings: Crisis as Opportunity in the Economic and Social Rigths Jurisprundence of the European Court of Human Rights

Author:
Caroline Omari Lichuma
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
We live in a world in crisis. These crises are experienced globally, regionally, by individual States and mostly by individuals themselves. Despite our differences, we are all united by crisis. However, adopting a regional outlook, this paper focuses on Europe, which, like much of the rest of the world, has in recent times been buffeted by multiple crises ranging from the financial and economic crisis that begun in 2008, to the climate change crisis, to the migrant and refugee crisis, to the Brexit crisis, to the COVID-19 pandemic that has rocked the entire globe. In times of crisis, it is commonplace to turn to legal and institutional frameworks in the hopes of finding some reprieve. Within Europe, one such institution is the European Court of Human Rights (ECtHR). This Court, also known as the Strasbourg court, was established in 1959 under Article 19 of the European Convention on Human Rights (ECHR). Despite its primarily Civil and Political Rights (CPRs) mandate, the ECtHR has in numerous cases proven to be fertile ground for planting the seeds of Economic and Social Rights (ESRs) protection, which is/was inevitable, given the widely accepted indivisible, interdependent and interrelated nature of all human rights, whether CPRs or ESRs. The ECtHR explicates that “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions.” In the present day conditions of numerous crises that have only exacerbated the already precarious conditions of numerous vulnerable rightsholders in the family of European States, the question then becomes what jurisprudential trends, prospects and pitfalls exist for the ECtHR in its dynamic interpretation of the ECHR to include ESRs. In seeking answers to this question, this paper analyzes the ESRs jurisprudence of the ECtHR with the intention of illuminating how the Court has, and ought to utilize its institutional role as an enforcer of human rights in general and ESRs in particular in the quest to mitigate the effects on rightsholders, of the crises being experienced within Europe. At the heart of this inquiry lies the assertion that in line with the ECtHR’s ESRs jurisprudence thus far, which evinces a willingness on the part of the Court to vindicate ESRs in order to bring these rights to life for the vulnerable rightsholders who need them the most, the myriad crises currently plaguing Europe continue to create opportunities for the ECtHR to craft a principled and consistent ESRs jurisprudence while simultaneously respecting the margin of appreciation enjoyed by the respective European States. This paper does not analyze State responses under Article 15 of the ECHR, which specifically allows the High Contracting Parties to derogate from their obligations under the Convention in times of war or other public emergency threatening the life of the nation. Rather, the analysis will be restricted to the ESRs jurisprudence of the ECtHR in times of the specific crises outlined below and where the States in question have not made an Article 15 derogation. The paper will proceed in three parts. Part A will give a brief overview of how the ECtHR has vindicated ESRs through its interpretation of the primarily CPRs found in the ECHR. Part B will thereafter briefly analyze three specific crises that have shaped the more recent ESRs jurisprudence of the Court: the financial and economic crisis, the migrant and refugee crisis and the COVID-19 pandemic. Finally, Part C will offer some tentative recommendations on the way forward, arguing that while some progress has been made by the ECtHR in centering ESRs as a very necessary part of its response to contemporary European and global crises, the battle is far from won.
Topic:
Crisis Management, Economic Rights, European Court of Human Rights (ECtHR), Jurisprudence, and Social Rights
Political Geography:
Europe