Intellectual Property Rights, the Blue Economy and Sustainable Development in Global Coastal Communities

Marsha Simone Cadogan is a post-doctoral fellow in the International law research program at the Centre for International Governance Innovation. She has a PhD in intellectual property rights (Osgoode Hall Law School) and is called to the Bar of Ontario. Her interest include best uses of intellectual property as innovative development tools in diverse economies, intellectual property policies and international trade and intellectual property and competition law.

The notion of the “Blue economy” was championed at Rio+20 United Nations conference on Sustainable Development as a vital concern of coastal communities who interact by choice or necessity with the oceans.[1] The Blue economy relates to best practices and means of achieving oceanic sustainability while promoting economic growth, social inclusiveness and employment in coastal communities. This note addresses how innovative uses of IP may help to develop and solidify blue economic sectors and impact sustainable development targets.[2] Can patent-related oceanic technologies, aquaculture geographical indication (GI) industries and certification marks as aspects of trademarks valorize the blue economy in coastal communities? Since innovativeness in IP is likely to influence how well IP-intensive firms and economies engage with intangible property, the points are applicable to diverse economies with coastal communities (including Canada), although reference is made to small island states across the globe.

Developing and least developed countries are primarily net importers of IP. Creating, rewarding and finding sustainable markets for IP-intensive goods is a continuous challenge for these economies.[3] The quest to find clean, affordable and reliable means of renewable energy is emboldened by research and development (R&D) into tidal powered technologies. Sea level surges between high and low tide is used in tidal barrages, tidal turbines or tidal fences to create kinetic energy which is then converted into electricity. Research into this type of renewable energy is still developing but working models and prototypes have been developed in places such as the Netherlands, Canada, Southern France and Northern Ireland.

The use of IP in the creation and commercialization of tidal powered energy may assist coastal communities including small island states, in accessing an industry capable of diversifying its economy while promoting an innovative lens in the use of IP. This linkage of IP with marine resources may promote sustainable development.[4] Other potential impacts include fostering a science and technology culture in businesses and schools in developing countries and increases in their economies’ job base.[5] Tidal powered technologies are expensive projects. One way of making the technology more accessible to resource-strapped economies is by use of open and collaborative mechanisms in the development and commercialization of the technology. Open and collaborative innovation enables the sharing of patented technologies in the public domain for the purposes of encouraging further R&D or use of the patented shared technologies in similar or unrelated fields.[6] For example, Microsoft’s Shared Innovation Initiative allows customers to develop creations with the software company using Microsoft’s patents and design rights. Developers participating in the project can file patent applications on their share of the invention to which they have contributed their skills and knowledge.[7] Open and collaborative innovation in tidal powered technologies can create a space for innovative collaboration from diverse industry players from different jurisdictions. A national level IP and innovation strategy should be at the center of this initiative, with clear directives on how best to incentivize industries to achieve the implicated SDG targets (SDG targets 8, 9 and 14).[8] Tidal powered technologies provide opportunities for small island states to use its vast expanse of water for renewable energy purposes. In exploring these opportunities, small island states should bargain for IP licensing agreements and contractual terms that permit local ownership of the patented technologies developed in the projects.

Also relevant is tapping institutions such as the World Intellectual Property Office’s for technical assistance in the transfer of technologies on favorable terms to developing countries. This may build partnerships and reduce the cost involved in developing tidal powered technologies.

Aquaculture is a vibrant and integral aspect of daily livelihood in many coastal communities.[9] A common challenge to sustainable aquaculture is overfishing, and damages to marine life species by climate change. An aquaculture geographical indications (GIs) scheme sets standards for fishing and the commercialization of fisheries while providing employment opportunities for women and the less advantaged in coastal communities. GI standards setting can influence sustainable approaches to how and when fishing occurs in coastal waters. The Fiji island and regions like the Caribbean with unique fisheries population should consider including aquaculture GIs as integral aspects of their quest to develop domestic intellectual property. Aquaculture GIs are collective proprietary rights designated as such because of unique ties between fisheries, the water, the geographic location and its peoples. Examples of GI registrable fisheries from across the globe include Fiji’s Orange-spotted therapon, Barbados’ starfish, Jamaica’s Killifish and British Columbia’s Sturgeon fish. By investing in fish related industries and spin-offs, GI aquaculture can provide employment opportunities for women who reside in or near to coastal communities. When successful, GI aquaculture industries may reduce gender gaps in the fisheries industry. By creating a sustainable sector with increased opportunities for women to participate in the industry, GI aquaculture ventures may also help to facilitate gender parity in IP-intensive industries.

In the absence of GI legislation, certification marks can be useful tools in the creation of fishing associations, setting industry standards with impacts on product commercialization. A certification mark distinguishes a product or service from another by setting specified industry standards based on the character of the goods, who produces it, its area of production, and the working conditions under which it is produced.[10] For present purposes, the focus is on the adoption of practical and sustainable standards and policies to govern the fishing industry. This may be a more easily implemented legal framework especially if there is lack of local consensus on the GIs’ registrability.[11]

Jurisdictions that seek to diversify their business and industry sectors through intangible resources usually focus on strategies that can attract and retain high-value IP-intensive industries for the long term.[12]  Developing patent- based industries to produce eco-friendly fishing apparatuses such as bio-degradable fishing nets and wind and solar powered fishing vessels help to build resilient fishing infrastructure in coastal communities. This sectoral focus also fosters innovation in how emerging economies use IP and adds relevance to the value of IP in marginalized communities.

The use of IP and innovation strategies in the blue economy should, where possible, be integrated with other forms of international law instruments. Finding synergies between IP and the United Nations Convention on the Law of the Sea may assist in creating an integrated legal framework for sustainable development in the blue economy. Also relevant is how best to ensure that IP-intensive sustainable development projects in the blue economy are in fact inclusive to all individuals in these communities. In this context, public-private partnerships, access to life-enhancing education, and the availability of micro-finance schemes for low income entrepreneurs may be helpful in creating a level playing field.

[1] United Nations Sustainable Development, The Blue Economy Concept Paper, online: < https://sustainabledevelopment.un.org/content/documents/2978BEconcept.pdf>.

[2] United Nations Sustainable Development Goals, 9 A, online: < https://sustainabledevelopment.un.org/SDG9>.

[3] Keith Maskus et al, Intellectual Property Rights: Legal and Economic Challenges for Development (Oxford: Oxford University Press, 2014).

[4] United Nations Sustainable Development Goals, SDG 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development, 14.7, online < https://sustainabledevelopment.un.org/sdg14>.

[5] SDG 8, Decent Work and Economic Growth, 8.2-8.3, online: < https://sustainabledevelopment.un.org/sdg8>

[6] Jeremy De Beer “Open Innovation Policy Frameworks: Intellectual Property, Competition Investment & Other Market Governance Issues” (Prepared for Industry Canada: Ottawa, 2015).

[7] Steve Brachman, “Microsoft Announces Shared Innovation Initiative Encouraging Industry Partners to Patent Collaborative Innovations” IP Watchdog, April 10, 2018. online: <http://www.ipwatchdog.com/2018/04/10/microsoft-announces-shared-innovation-initiative-encouraging/id=95651/>.

[8] SDG Decent Work and Economic Growth, 8.2, 8.3, 8.5; SDG 9: Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation 9.4-9.5; SDG 14.A, supra note 3.

[9] Cyrus Rustomjee, Operationalizing the Blue Economy in Small States: Lessons from the Early Movers, CIGI Policy Brief 117; SDG 9.4 and 9.5 online: <https://sustainabledevelopment.un.org/SDG9>.

[10] For example, see Canada Trademarks Act RSC 1985, c T-13 s.2 (Definitions).

[11] Marsha S. Cadogan, “Making Agricultural and Food-based Geographical Indications Work in Canada” CIGI Policy Brief No.125.

[12] For example, Switzerland uses indication of sources, which link products to their place of origin to create IP value and industry sustainability in several industries including pharmaceuticals, Swiss watches, and food products.

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