The Road Travelled and Future Directions for Sustainability and Tech in a Trumpian Era of De-Globalisation

Abstract

The articles and opinions of GRUR International have frequently engaged with some of the leading issues that our legal systems are grappling with, two of which I want to explore in this short editorial focusing on the path travelled and the challenges ahead from an IP and competition law perspective. These are (possibly unsurprisingly) sustainability – including climate change – and digital and AI developments. The first part will briefly review how the two areas of law have interacted with these issues. The second part will focus on how the new era of polarisation, de-globalisation, protectionism, and nationalism, which has now been firmly ushered in with the re-election of Donald Trump in the US, will affect law and policy in these fields. It seems beyond doubt that sustainability and climate change, along with the developments around digitalisation and algorithms/AI, are among the most critical issues of our time. When exploring the issue of sustainability and especially climate, we can focus in particular on IP laws and competition laws, as each of these areas has started to grapple with specific challenges and made some progress. In the field of IP law, the role of IP and how it can foster sustainable technologies and other green innovation has become a focus of the debate. With its traditional focus, IP law has been designed with innovation incentives in mind by providing innovators with exclusive rights to their creations. This function is crucial in the green transition. The IP law framework can effectively be used in more or less unadulterated form to foster green innovation. However, given the need to rapidly scale and diffuse green technologies, a close eye needs to be kept on dissemination and in particular incentives for and costs of the dissemination of green technologies. For instance, patents related to renewable energy technologies, such as wind, solar, and bioenergy, have substantially increased over the last decade. Yet, the roll-out of these technologies on a global scale is something that deserves attention so as to ensure that they are accessible in developing nations. We have seen work in this area that has led to new proposals and the adoption of mechanisms for compulsory licensing, patent pools, and technology transfer, with WIPO’s ‘Green Platform’ being just one example in the area. Competition laws have also started to play a role in this area. Some EU Member States (and the EU itself), but equally other jurisdictions from Singapore to New Zealand, have been at the forefront, aiming to provide businesses with individual guidance and publishing general guidelines on how business activities fostering sustainability interact with competition laws. Similarly, we have seen first cases in Europe in which competition agencies pursued companies that have been restricting competition, thereby harming sustainability. For example, the European Commission pursued car makers in the AdBlue case for restricting innovation competition around better emission cleaning technologies. In some jurisdictions where there are rules on superior bargaining power, these might equally be used to foster different aspects of sustainability, ensuring that the weakest players in the market are not exploited by, e.g. powerful retailers. Overall, while (too) much still needs to be done in terms of sustainability and the climate, the fields of law covered by GRUR International have developed and adjusted their tools to play a role in addressing these challenges. The digital and AI fields are equally fields of global relevance in which we witness numerous challenges within existing legal frameworks, and GRUR International has featured many of them over the years. The role of IP has already been at the forefront of the digital transformation with questions around protection in the digital world. Yet, new frontiers are already emerging as complex questions around creations by and the creativity of AI become apparent. What protections are afforded where AI systems are trained on human-created material? How should creations made by, through or with the essential help of AI be treated? Questions around creation and inventions and subsequent ownership are crucial. How should the ownership of AI-generated art and inventions by AI be treated in applications for patents? We are seeing first attempts to regulate the space, such as the US Copyright Office’s decisions on AI-generated works. The blockchain space raises additional questions, particularly regarding digital ownership and copyright in the context of Non-Fungible Tokens (NFTs). Competition law has also seen an evolution, with questions about tech giants and the interaction with data and data protection laws becoming competition concerns. The adoption of the European Union’s Digital Markets Act (DMA) with the aim of protecting fair and contestable markets is a prime example. Other jurisdictions have also opted for the adoption of new regulatory tools that address digital markets with monopolistic tendencies. The algorithm and AI revolution further challenges the competition law framework. We have already seen a wide ranging discussion about algorithmic and AI collusion, and we are witnessing an emerging debate around abuses, market concentration and its effects in the AI domain and its AI stack, and a focus on the control of the digital value chain. The protection of innovation is a core theme in these debates. Overall, as digital and AI advances continue to transform our world, the legal frameworks have developed and will continue to have to develop to adjust to the emerging challenges, whether or not in the area of IP and competition rules. It might not be surprising that the recent years are described as a decade of increased global polarisation. Deepening social and political divides are visible all over the globe, and social media have certainly not been a moderating influence. The latest sign is the re-election of Donald Trump in the US, whose new administration is expected to push further in the direction of de-globalization. It is not farfetched to predict that the coming years will be a time characterized by even more protectionism and nationalism disrupting established global cooperation and trade. In other words, de-globalization will accelerate, thereby possibly increasing economic uncertainty and straining international relations. But what does this spell for the challenges in the sustainability and digital and AI areas discussed above? For sustainability, the new era of protectionism will have familiar consequences. On the one hand we might see a slowing of the pace of green transition and green innovation. While tariffs and other trade barriers could increase the costs for the adoption and development of green technology (e.g. rare earth minerals), the effects on green innovation work in a less direct way. On the one hand, the dissemination of green IP could be restricted due to nationalism in the form of national security restrictions. On the other hand, we might see IP law being used to protect domestic producers while harassing foreign producers and using alleged IP violations in trade disputes. In competition law, we might observe a reversal of the move towards a global consensus that competition and companies can play a role in sustainability matters. In fact, we might see the ‘anti-woke’ capitalist backlash building up steam, with antitrust rules used to harass companies that engage in ESG related matters. In other words, we could see more actions like that recently by Republican attorney generals in the US against financial investors and their climate-related actions in the coal industry. Whether such actions will ultimately be successful in court is a different question, but they might well sow doubt on the legality of corporate sustainability initiatives. This contrasts sharply with the legal certainty that many competition agencies have tried to provide to companies, and might hamper the latter’s global actions. Another avenue that might affect sustainability is national security concerns, in particular in mergers related to technology crucial for the green transition. For the digital space including algorithms and AI, the new era of protectionism will have some substantial effects. The area of digitalisation and AI is one that seems intrinsically linked to trade and competition between countries. Many countries identify this area as one of national strategic interest. The interaction between national security concerns and IP may become a crucial battleground that allows states to exclude foreign companies from any new and developing technology. Similarly, IP laws could be the tool of choice to pursue foreign companies in the digital and AI area. In the competition-law field, protectionism and nationalism might have two distinct effects. On the one hand, less harsh enforcement against dominant domestic companies, since dominant companies in the digital sphere are seen as a strategic and national security asset. At the same time, any antitrust action or regulatory action (such as e.g. the DMA) by foreign authorities against domestic tech companies will be seen as hostile and might be answered with trade retaliation. On the other hand, foreign tech companies will be seen as suspicious and worthy of antitrust scrutiny. Similarly, any merger of domestic and foreign companies in the tech area will likely face increased scrutiny. Overall, it is not without irony that the issues we are facing are becoming more globalized than ever, while de-globalisation takes hold. We can expect more heterogeneity or often even opposing approaches to the same (global) problems. Problem-solving within established (multilateral and multinational) institutions will become more difficult and possibly less influential. As a reaction, we might see a move away from formal to informal or even private cross-boundary networks for addressing global issues. For example, private standard setting organisations could gain an even greater role in addressing such issues. Yet, where such organisations face challenges, including open hostility, even such avenues for co-operation will become more difficult to maintain. In these situations, the individual legal comparativist will have an increasingly important role to play and, with it, outlets like GRUR International. The study of other systems and their solutions to problems can provide crucial insights and could be the main avenue for more global approaches to the challenges discussed here. In a de-globalized world where foreign and international measures are seen with suspicion, the comparativist has a new role. The internal critique of the existing national approach by the comparativist can be an argument for internally introduced change; the only kind of change perceived as legitimate in a de-globalized, nationalistic world.