Protection of IP Rights as an Investment

Abstract

Intellectual property (IP) rights are embedded as an asset under the definition of investment in most international investment agreements. These agreements ensure protection and promotion of investment. Where IP rights are treated as an investment, they do benefit from the protection standards afforded by the international investment agreements. However, it is highly debated that to what extent an IP right constitutes an investment. Does the inclusion of IP rights under the investment definition of agreement suffice to be qualified as an investment? Or are there any other requirements? Over the last few years, these questions have attracted considerable scholarly interest. This article aims to analyse protection of IP rights as an investment and legal issues deriving from intersection between IP law and international investment law. Accordingly, it will attempt to answer the question as to when IP rights constitute an investment. In this sense, the article will initially discuss the inclusion of IP rights under the definition of investment afforded by several investment agreements. Subsequently, protection of IP rights in ICSID Convention will be discussed critically. Thirdly, the article will try to underscore the roles of international investment law and domestic law in determining whether an IP right is investment.