AI and the protection of copyright and intellectual property

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AI and the protection of copyright and intellectual property

Policy considerations- Complex technology – simple solutions

By Henri Estramant, LLM

The article highlights major issues surrounding copyright ability policy from an international perspectives, and concludes that despite the hype surrounding AI systems, most legal systems are already adequately equipped with best practices to handle these technological developments.

Most AI experts do not expect AI systems to come even close to human-like intelligence until about 2075[1], and such conjectures are mere speculations. At the moment institutions such as the European Commission[2] do not see it warranted or ethical to grant AI systems legal personhood, a prerequisite for copyright and patent protection. Additionally, act of invention requires the deployment of “human faculties”, even entities with legal personality such as corporations may not be considered as inventors.

Therefore, my general policy recommendations on the subject:

a) The time for an AI system, or Robotic Process Automation (RPA) or a robot to hold uniquely human creative capabilities is still very far off. While it is potentially possible that AI systems will produce material that is crucial for rendering an invention inventive, it is still possible that the human contribution and human conception of the idea that underpins the invention enable the identification of a human inventor under whom to patent, or copyright a work. If AI systems in general are afforded such a prerogative in the future, it ought to be on the basis of granting them ‘individual legal personhood’, which shall require proof of extraordinary ‘creative capabilities’ akin to those of a human, or in simple terms, that the AI system can create ‘original content’ without the need of a human facilitator.

My approach is warranted by the UK’s path, also followed by countries such as Ireland, New Zealand, Hong Kong SAR, India, etc. The UK’s Copyright, Designs and Patents Act (CDPA), section 9(3)[3] states “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.

Moreover section 178[4] of the above mentioned CDPA, specifies that “computer-generated”, “in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work”. The latter statement predisposes an exception for whenever a human is not directly involved in the generative process, and can provide flexibility for UN member states to grant copyright to an AI system deemed to fulfill certain requirements that they embed in their respective legal jurisdictions. As a matter of fact, the aforementioned approach is warranted by the UK’s Supreme Court decision Thaler v Comptroller-General of Patents, Designs and Trade Marks dated 20 December 2023[5] wherein the highest court affirmed that “AI cannot be inventors under current UK patent law”. The Court’s decision hinged on interpreting ‘inventor’ in the Patents Act 1977, strictly for natural persons. This traditional understanding excludes non-human entities like AI. The Court clarified at paragraph 56, that an inventor “must be a natural person,” excluding AI like DABUS.

The ruling implies Thaler’s legal position might have been different had he named himself as the inventor, using DABUS as a tool. This alignment with legal norms could have satisfied Section 13, making DABUS a facilitator rather than an autonomous inventor.

Hitherto the only major jurisdiction, wherein an AI generated content (AIGC) has been afforded direct copyrightability is Beijing, through a judgement of Beijing Internet Court[6] issued on 4 December 2023, but that can still be appealed to Beijing Intellectual Property Court. The latter decision is potentially epoch-making, if it withstands the test of an appeal and taking into account NYU Stern School of Business Professor Arun Sundararajan’s statement that predicts that the world will “follow China rather than the EU[7]” concerning AI regulation. China for instance already requires watermarking[8] for AI-created content. Deepfakes are already explicitly banned in China, that is, making a video mimicking someone else without that person’s consent. Moreover, China requires the registration of all generative AI systems with the Cyberspace Administration of China[9].

The judgement by Beijing Internet Court moreover stands in stark contrastto the case Thaler v. Perlmutter et al, (D.D.C. 2023)[10], issued 18 August 2023, District of Columbia, USA, and that in 2023 was considered the first groundbreaking ruling in the AI age. On the other hand, Beijing Internet Court did stipulate that “AI-generated images should be judged on a case-by-case basis”[11]. The ruling was based upon the image’s ‘originality’, wherein the defendant adapted his work through a plethora of prompts in order to reach “aesthetic choice and personalised judgment”[12], a rationale that follows an approach analogous to the earlier explained UK’s Copyright, Designs and Patents Act (CDPA), section 9(3); further solidifying my best practices policy approach.

b) Taking into consideration public fears of a ‘AI takeover’, global bodies such as the UN should recommend to all member states to assuage such hesitations by safeguarding the status quo that guarantees copyright and patent entitlement linked to the interactions of AI systems with direct human creativity. That is to say, a human being must be enshrined as the innovator and creator of material produced with the aid of AI tools and robots. Albeit the latter approach will be problematic, with people wishing to grant AI personality rights and consciousness, the fact is that generative AI is still subservient to the interaction with the human wit, and shall remain thus for the foreseeable future. Already now we apply artistic creations through licensed products such as PowerPoint or Microsoft Word to our own work, so the copyright for such presentations, or contents is not granted to Microsoft Corporation.

Lately a plethora of media outlets have written articles about the possible ‘awareness’ or ‘consciousness[13]’ of AI systems, however, there is no evidence that such statements hold any accuracy as the technology is not yet so advance.

c) Concerning fair use: Since 2019 in the EU, Article 4[14] of the Copyright in the Digital Single Market Directive permits commercial trade and data mining (TDM), unless the copyright-holder has explicitly opposed it. In the US, the flexible nature of the Fair Use doctrine could potentially encompass newer technologies like TDM, which weren’t contemplated during its formulation. In 2018, amendments to Japan’s copyright law permitted users to analyze copyrighted works for machine learning applications, ensuring the rights holder’s interests were not unfairly compromised. Analogously, Singapore’s Section 244[15] Copyright Act 2021 authorizes the reproduction of copyrighted materials for “computational data analysis” and sharing the results for verification purposes. Meaning that the trend in the developed world is allowing for TDM for innovation while safeguarding the rights of copyright-holders; an approach which should be advocated, for it fosters innovation whilst also covering copyright protection.

About the author:

Henri Estramant

Henri Estramant, LLM is a former consultant at the European Parliament’s Panel for the Future of Science and Technology. He is an expert in AI & Crypto Assets regulation. Certified -with Honors- in AI & Law by Lund University. He holds a Master’s of Laws from VU University Amsterdam (International Business Law).

In 2023 he completed the ‘Artificial Intelligence: Implications for Business Strategy’ Executive Education program from MIT Sloan School of Management and the MIT Computer Science and Artificial Intelligence Laboratory (CSAIL). His legal tech expertise has been extensively featured on international media.

[1] 6 V. Müller and N. Bostrom, “Future progress in artificial intelligence: A Survey of Expert Opinion, in V. Müller” (ed.), Fundamental Issues of Artificial Intelligence (Synthese Library; Berlin: Springer 2016), at https://nickbostrom.com/papers/survey.pdf, retrieved 2-IX-2023, 12:15

[2] In its outline of the EU future strategy, the Commission simply ignores the invitation to consider the aforementioned reassessment and does not mention “electronic personhood”; see Artificial intelligence: Commission outlines a European approach to boost investment and set ethical guidelines, at http://europa.eu/rapid/press-release_IP-18-3362_en.htm, retrieved 2-IX-2023, 13:02

[3] https://www.legislation.gov.uk/ukpga/1988/48/section/9, retrieved 2-IX-2023, 13:46

[4] https://www.legislation.gov.uk/ukpga/1988/48/section/178, retrieved 15-IX-2023, 16:01

[5] https://www.supremecourt.uk/cases/docs/uksc-2021-0201-judgment.pdf, retrieved 21-XI-2023, 10:05

[6] https://www.scmp.com/tech/tech-trends/article/3243570/beijing-courts-ruling-ai-generated-content-can-be-covered-copyright-eschews-us-stand-far-reaching?campaign=3243570&module=perpetual_scroll_0&pgtype=article,  https://the-decoder.de/pekinger-internetgericht-erkennt-urheberrecht-fuer-ki-generiertes-bild-an/, retrieved 5-XII-2023, 11:10

[7] https://www.cnbc.com/video/2023/08/16/the-world-will-follow-china-rather-than-the-eu-on-ai-rules-professor.html, retrieved 16-IX-2023, 9:30

[8] https://www.technologyreview.com/2023/08/29/1078620/google-deepmind-has-launched-a-watermarking-tool-for-ai-generated-images/?utm_campaign=site_visitor.unpaid.engagement&utm_medium=tr_social&utm_source=LinkedIn, retrieved 16-IX-2023, 10:25

[9] http://www.cac.gov.cn

[10] https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2022cv01564/243956/24/, retrieved 16-IX-2023, 11:46 

[11] https://english.bjinternetcourt.gov.cn/topnews.html, retrieved 6-XII-2023, 14:46

[12] Ibid

 [13] How to Tell if Your A.I. Is Conscious:  https://www.nytimes.com/2023/09/18/science/ai-computers-consciousness.html, retrieved 18-IX-2023, 18:15

[14] https://eur-lex.europa.eu/eli/dir/2019/790/oj,  retrieved 18-IX-2023, 20:47

[15] Singapore Statutes Online: https://sso.agc.gov.sg/Act/CA2021?ProvIds=pr244-#pr244-, retrieved 20-IX-2023, 11:20

The best way to predict the future is to invent it!

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The best way to predict the future is to invent it!

By Alexandra Paucescu

“The best way to predict the future is to invent it.” —Alan Kay

There could be no better saying than this one, to fully describe Rona Jobe.

An American with Filipino origins, Rona grew up in sunny California, graduated from prestigious UC Berkeley and then moved to Washington DC to pursue a career, at first focusing on education research and policies and later as a program analyst, working on providing and tracking grant results and successes. 

‘Eventually, I found my way into the consulting world and ended up staying, because it offered a more tangible and faster implementation cycle compared to policy and non-profit work. I enjoyed the fast-paced environment and the quicker feedback loop with clients. I loved solving problems based on research, strategy, and best practices and then implementing them.  But the international twist in my career came when we were posted in Brazil, where I continued to work, albeit remotely and in a limited way. It was during this time that I experienced first-hand how the lack of meaningful and progressive work opportunities for diplomatic spouses impacted our entire community. Back in the U.S., I ventured fully into the world of small business, first helping friends with their marketing and business plans; and then officially joining a small business to help them grow significantly over the next six years. Through that work, I found fulfillment and homed in on my passion for helping drive progress and implementation to other businesses, which I turned into a vehicle to tackle the diplomatic spouse employment opportunity issue. It’s been a diverse and exciting journey.’

Rona Jobe

She is now the CEO of a remote and asynchronous consulting firm, LVL-Up Strategies. ‘One of my proudest achievements has been building a company that supports and aims to address the problem of spousal/EFM (eligible family members) employment within the diplomatic community. LVL-Up Strategies strives to create opportunities for career-progressive work that can be carried from one diplomatic post to another, regardless of location. We hope to make an impact by not only further developing our company infrastructure, but also building an ecosystem for meaningful careers and employment for the diplomatic spouse community. We still have a long way to go, but being able to start this company and continue to build support for diplomatic spouses has made me incredibly proud.’

Rona is also Partner and Corporate Strategist for Smart Settlements, a Washington DC area title and settlements firm. She is relentless in her pursuit of new opportunities, growth, and development. ‘My interests are quite diverse. When I have a moment to myself and have “free time”, I find myself playing music, working out, hiking, cooking, learning new languages, traveling, and playing with Microsoft Excel to model/calculate an idea. These activities bring me joy, inspiration, and a sense of progress, both in my personal and professional life. I draw motivation from the concept of progress, not perfection, and I believe that achieving small victories every day, even in my hobbies, fuels my drive.’

Ever since she has joined the diplomatic circles, she recognized the opportunities but also the downsides of this kind of life. ‘Diplomatic life offers a unique opportunity to connect with people from diverse cultures and introduce them to your own. Being able to immerse myself in different languages and cultures, learning from them, and gaining a deeper appreciation for people’s backgrounds is incredibly eye-opening. I wish more people had the chance to experience it, as I believe it contributes to a deeper understanding of one another.

However, discussing the challenges and sacrifices that diplomatic spouses often face can be considered ‘taboo.’ It’s crucial to recognize that, while the diplomatic lifestyle has its rewards, it also entails significant personal and professional sacrifices for many spouses. Most people think the actual logistics and the move itself overseas would be the most challenging parts of diplomatic life. In my opinion, one of the most challenging aspects is the need to reinvent oneself with each new move abroad. Both diplomats and their spouses experience that, but while diplomats have a position within the embassy, along with the built-in day-to-day support at work, which allows for their identity to stay intact for the most part, spouses often have to give up their own careers, identities, and even their roles in the communities back home.  Learning how to advocate for themselves and knowing what resources are available at post are crucial.

It’s difficult to find and grow a career. Often diplomatic spouses end up filling this void with volunteerism, freelancing, and government employment (if any available), but the options are still highly limited. A great solution to this would be to have programs that encourage and guide employers to hire and retain diplomatic spouses, much easier to do these days, with the advancement of tools for remote work resulting from the COVID-19 pandemic years. Also, there are times when spouses must live separately from partners because of competing interests between work/life/children’s needs and the needs of the mission (also my case these days). And in that scenario, it’s usually the diplomatic spouse who takes on the heavier lift, especially when children are involved. I think that diplomats and their spouses should share more about the challenges they face and look at challenges that others in their community are facing through a more empathetic lens, to foster a more balanced understanding of their lives.’

Maybe hard to believe, but many of the stereotypes circulating in the diplomatic world are often maintained by diplomats as well. In most of the interviews that I have conducted over the last 4 years, I have tried to dismantle, together with my interlocutors, many of these myths and stereotypes, which do us no favors and make our lives more difficult.

Rona Jobe is a great example of a woman who understood that it is in her power to change the narrative and turn things around in her favor, with tenacity and perseverance.

‘Success comes by no accident, but by wit and grit’, she says, strongly reinforcing the importance of hard work and determination in achieving goals.


Rona Jobe, Founder and CEO of LVL-Up Strategies, www.lvlupstrategies.com


About the author:

Alexandra Paucescu

Alexandra Paucescu- Author of “Just a Diplomatic Spouse” Romanian, management graduate with a Master in business, cultural diplomacy and international relations studies.

She speaks Romanian, English, French, German and Italian,  gives lectures on intercultural communication and is an active NGO volunteer.

Statement by Prosecutor Karim A.A. Khan KC on the issuance of arrest warrants in the Situation in Ukraine

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Statement by Prosecutor Karim A.A. Khan KC on the issuance of arrest warrants in the Situation in Ukraine

On 2 February 2024, I submitted applications to Pre-Trial Chamber II of the International Criminal Court for warrants of arrest in the context of the Situation in Ukraine.

Today, two years after my Office opened an investigation, and one year following the issuance of the warrants against Vladimir Putin and Maria Lvova-Belova, the Pre-Trial Chamber has issued additional arrest warrants in relation to the following two individuals:

  • Sergei Ivanovich Kobylash, a Lieutenant General in the Russian Armed Forces who at the relevant time was Commander of the Long-Range Aviation of the Aerospace Force;
  • Viktor Nikolayevich Sokolov, an Admiral in the Russian Navy, who at the relevant time was Commander of the Black Sea Fleet.

On the basis of evidence collected and analysed by my Office pursuant to its independent investigations, the Pre-Trial Chamber has confirmed that there are reasonable grounds to believe that General Kobylash and Admiral Sokolov bear individual criminal responsibility for the following three crimes: 1) the war crime of directing attacks against civilian objects (article 8(2)(b)(ii) of the Rome Statute); 2) the war crime of causing excessive incidental harm to civilians or damage to civilian objects (article 8(2)(b)(iv) of the Rome Statute); and 3) the crime against humanity of inhumane acts under article 7(1)(k) of the Rome Statute.

In our application, my Office submitted that these individuals bear responsibility for attacks on critical infrastructure in Ukraine, including strikes against power plants and sub-stations, from 10 October 2022 until at least 9 March 2023. My Office presented evidence that these strikes were directed against civilian objects, and for those installations that may have qualified as military objectives at the relevant time, the expected incidental civilian harm and damage would have been clearly excessive to the anticipated military advantage.

After reviewing the evidence submitted, the Pre-Trial Chamber has determined that there are reasonable grounds to believe that the alleged campaign by the Russian Armed Forces during this period represents a course of conduct involving the multiple commission of acts against a civilian population, pursuant to a State policy, within the meaning of Article 7 of the Statute, establishing the basis for the finding that they may represent a crime against humanity under article 7(1)(k) of the Statute.

The Pre-Trial Chamber has also found that there are reasonable grounds to believe that these commanders are criminally responsible for committing these crimes jointly or through others, for ordering their commission, and/or for failing to exercise proper control over their subordinates who carried out the crimes.

In our application for these warrants, my Office again underlined that these acts were carried out in the context of the acts of aggression committed by Russian military forces against the sovereignty and territorial integrity of Ukraine which began in 2014.

I have repeatedly emphasised that those responsible for actions that impact innocent civilians or protected objects must know that this conduct is bound by a set of rules reflected in international humanitarian law. All wars have rules. Those rules bind all without exception.  As I have made clear, these laws cannot be interpreted so as to render them devoid of meaning. This applies to the Situation in Ukraine and applies with equal vigour in all Situations for which my Office has jurisdiction.

I am grateful for the support of many partners of the Office that have allowed us to move forward in the collection of evidence in relation to this work. I wish to express my thanks in particular to the Office of the Prosecutor General of Ukraine whose engagement has been essential in supporting the work my Office has carried out, including on the ground in Ukraine.

I will also continue to seek cooperation from the Russian Federation in relation to the Situation in Ukraine, and ensure my Office fully meets its responsibility pursuant to article 54 of the Rome Statute to investigate incriminating and exonerating circumstances equally.

Mechanism Registrar Tambadou signs Memorandum of Cooperation with BiH authorities on registration of judgements of conviction

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Mechanism Registrar Tambadou signs Memorandum of Cooperation with BiH authorities on registration of judgements of conviction

The Hague, 31 January 2024 – The Registrar of the International Residual Mechanism for Criminal Tribunals (Mechanism), Mr. Abubacarr M. Tambadou yesterday took part in a signing ceremony with Mr. Davor Bunoza, Minister of Justice of Bosnia and Herzegovina (BiH) to conclude a Memorandum of Cooperation (Memorandum) on provision of information from judgements of convictions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Mechanism.

Signed at the premises of the Parliamentary Assembly of BiH in Sarajevo, BiH, the Memorandum will enable the information on conviction from judgements of the ICTY and the Mechanism for persons who were born in BiH or are citizens of BiH to be registered in the domestic criminal records of BiH.

Speaking at the joint press conference, which was held after the signing ceremony, Registrar Tambadou stated: “Today is a watershed moment for the Mechanism and its predecessor, the ICTY, as it marks a significant chapter in the process of accountability. This Memorandum will ensure that those who committed the most serious crimes under the international law will bear the consequences of their actions beyond their term of imprisonment.”

Commending the efforts of Minister Bunoza in reaching this milestone achievement, Mr Tambadou added that, “while the signing of the Memorandum may only be the first step in many to come, it shows willingness of BiH authorities and the Mechanism to work together to achieve common goals. This Memorandum is a means to an end, and the ultimate end goal is to achieve reconciliation in Bosnia and Herzegovina. I hope that the actions we have taken today will be immediately followed by an efficient and effective plan of implementation.”

In turn, Minister Bunoza stated that during the past year, right from the start of his mandate, he insisted on resolving this matter, as it creates the preconditions both for reconciliation and for accession to the European Union. 

The Mechanism is responsible for carrying out a number of essential functions of the ICTR and the ICTY, which closed in 2015 and 2017, respectively. These include the supervision of enforcement of sentences, tracking and prosecution of remaining fugitives, protection of victims and witnesses, assistance to national jurisdictions, and preservation and management of the archives. 

Prosecutor Brammertz on Mission to Kigali

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Prosecutor Brammertz on Mission to Kigali

The Hague, 31 January 2024 – Chief Prosecutor Serge Brammertz of the IRMCT Office of the Prosecutor (OTP) is on an official mission to Kigali, Rwanda from 30 January to 7 February 2024.

The purpose of the Chief Prosecutor’s mission is to have high-level and technical discussions concerning ongoing efforts to achieve more justice for more victims and survivors of the 1994 Genocide against the Tutsi. 

 In view of the upcoming 30th commemoration of the Genocide, Prosecutor Brammertz is working to bring attention to the fact that more than 1,000 suspected genocidaires remain at large, living in countries across Africa, Europe, North America and elsewhere. That so many suspected perpetrators have fled to third countries and have not yet been prosecuted for their alleged crimes is deeply distressing to the victims and survivors, as well as a significant challenge to the rule of law.

Prosecutor Brammertz is committed to assisting Rwandan and other national authorities to bring these fugitives to justice, wherever they may be found. He will meet with the Minister of Justice, the Inspector General of Police and the Prosecutor General to brief them on the OTP’s efforts to provide a range of investigative and prosecutorial support to national partners, and discuss the ongoing successful cooperation between the OTP and the Rwandan justice sector. The Chief Prosecutor will further meet with representatives of the diplomatic community to discuss how to improve multilateral law enforcement cooperation in locating, arresting and prosecuting fugitive genocidaires currently residing in other countries. 

Finally, Prosecutor Brammertz will meet with representatives of the victims and survivors to discuss the importance of securing more accountability for the crimes committed and their continued vital role in the justice process. He will also celebrate National Heroes Day and join in recognizing those who courageously demonstrated the highest integrity and commitment to the Rwandan people.

15 arrested for arranging 133 sham marriages in Cyprus

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15 arrested for arranging 133 sham marriages in Cyprus

Judicial and law enforcement authorities in Cyprus, Portugal and Latvia have dismantled a criminal network suspected of organising 133 sham marriages in Cyprus to facilitate illegal immigration into the European Union. During a joint action day carried out on 29 January, 15 suspects were arrested: 13 in Cyprus, 1 in Latvia and 1 in Portugal.    

According to the investigations, the criminal network was also involved in human trafficking and money laundering activities, as well as forcing victims into bogus marriages for immigration purposes.

The suspects allegedly recruited Latvian and Portuguese women and facilitated their journeys to Cyprus, where they entered into arranged marriages with third-country nationals. The suspects arranged all of the logistics, including the purchase of flight tickets and the acquisition of passports and other required documents.

The marriages enabled the non-EU nationals to obtain residence permits from third countries, which they then used to travel to other European countries.

A total of nine cases have been opened at Eurojust since 2022 for the facilitation of execution of European Investigation Orders and European Arrest Warrants linked to this investigation. The Agency organised two dedicated coordination meetings and facilitated the judicial cooperation between the authorities involved during the action day.

Europol’s Operational Task Force (OTF) Limassol was set up to facilitate the joint efforts of Cyprus, Latvia and Portugal to dismantle this criminal network. Europol supported this OTF by facilitating information exchanges, coordinating and financing operational activities and providing tailored operational analytical support. During the action day, Europol supported the field activities by crosschecking the operational information collected in real time.

The following authorities took part in this investigation:

  • ·         Cyprus: Law Office of Republic of Cyprus, Cyprus Police
  • ·         Latvia: Prosecutor General’s Office, State Police of Latvia
  • ·         Portugal: Lisbon Public Prosecution Office, Judicial Police

WTO Agreement on Fisheries Subsidies – What Does it Imply and What Should be Discussed at the 13th Ministerial Conference in Abu Dhabi

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WTO Agreement on Fisheries Subsidies – What Does it Imply and What Should be Discussed at the 13th Ministerial Conference in Abu Dhabi

By Audrey Beaulieu

In an increasingly connected and globalized world, the age-old oversimplified, but good story of teaching someone to fish has morphed into a global conundrum of overfishing. The game rules are ones where everyone is pressured to build bigger and better fishing boats, equipped with the latest technology to haul in ever-increasing catches.

This global push, much like another story international development graduates are taught, the one of the well-intentioned Harvard graduates advising a small-time fisherman to expand his operations, has led to a frenzied race to harvest the seas. Everyone forges ahead, armed with the knowledge and resources to fish more efficiently, cast their nets wider and deeper, mirroring the vision of scaling well above for greater profits many times under the guise of fishing sovereignty.

But in this relentless pursuit, akin to the growing fleet of boats in our story, the once abundant oceans are now being emptied, a stark reminder of the fisherman’s peaceful and simple yet sustainable lifestyle. As we stand at this crossroads, we must ponder, much like the fisherman, whether the pursuit of more is worth the risk of losing what we already have – a thriving, sustainable ocean.

In accordance with SDG 14 – life below water – and the growing inclination towards more sustainable practices, the World Trade Organization (WTO) introduced, in June 2022, the Agreement on Fisheries Subsidies (AFS), an eagerly anticipated legal instrument aiming at reducing human impact on life below water. Narrowed down to twelve articles, the AFS specifically addresses subsidies contributing to illegal, unreported, and unregulated fishing (IUU fishing), subsidies linked to overfished stocks, and other fisheries subsidies deemed harmful to the sustainability of aquatic fauna. Despite being a sincere effort to limit states’ involvement in funding unsustainable practices, the tangible outcome of the long-anticipated negotiations appears somewhat conservative.

To justify its existence, the Agreement will have to constraint the use of capacity-enhancing subsidies and redirect its focus toward the reinforcement of monitoring, control, and surveillance (MCS) mechanisms.

Fisheries Subsidies

Annually, countries invest billions of dollars in financial contributions to the fisheries sector. Despite the prevalence of fisheries subsidies, there is currently no universally recognized categorization, leading various organizations and academics to employ their own. For the purposes of this article, the classification proposed by Sumaila and al. (2019), as it distinguishes subsidies based on their long-term impact on the marine ecosystem, will be used. This framework divides fisheries subsidies into three groups:

  • Beneficial subsidies, defined as “investments in the promotion of fishery resource conservation and management”;
  • Capacity-enhancing subsidies, defined as “programs that currently, or have the potential to encourage fishing capacity to develop to a point where resource exploitation exceeds the maximum sustainable yield, effectively resulting in the overexploitation of natural assets”, and;
  • Ambiguous subsidies or “subsidies [having] the potential to lead to either sustainable management or overexploitation of the fishery resource”.

It is important to note that the AFS specifically addresses capture production and does not cover subsidies related to aquaculture or inland freshwater fisheries.

Capacity-enhancing subsidies

Overfishing and overcapacity are well-recognized challenges in the fisheries sector. According to the 2022 FAO report, The State of World Fisheries and Aquaculture, “it is estimated that up to 35 percent of the global fisheries and aquaculture production is either lost or wasted every year” (FAO, 2022b). The report mainly attributes these losses to inefficiencies in value chains, a trend that has remained consistent over time.

In 2009, the World Bank highlighted the consequences of global fleet overcapacity, estimating a yearly gap of approximately $50 billion between potential and actual net economic benefits from marine fisheries (World Bank, 2009). In the subsequent “The Sunken Billions Revisited” report in 2017, this figure was revised to $83.3 billion in 2012 (World Bank, 2017). In parallel, market projections indicate an expected production of around 203 metric tons in 2031, while demand during the same year is estimated at approximately 183 metric tons (OECD & FAO, 2022). To sum it all up, supply already exceeds demand, and we need to learn to manage what we already produce before thinking about producing more.

As Mr. Abdul Hakim Elwaer, Assistant Director General UN-FAO Near East and North Africa said, “there is more than enough food produced in the world to feed everyone on the planet’’.

Yet, fisheries subsidies reached $35.4 billion in 2018, with about 60% considered capacity-enhancing subsidies. While understanding Members’ interest in investing in their national fleet to remain competitive in the global market, these numbers emphasize the need of limiting (or even prohibiting) capacity-enhancing subsidies.

However, determining the limits to be imposed on Members represents a meticulous task. For instance, a complete prohibition of capacity-enhancing subsidies for all Members, including those making minimal contributions to global marine capture production, would be impractical. Numerous proposals from various Members have been put forward, suggesting that a consensus representing all Members’ positions can certainly be achieved.

Finding a common ground

In a recent publication, Sumaila & al. (2022) provided a comprehensive overview of proposals made by Members. Commonalities in the proposals, namely the regulation of subsidies contributing to IUU fishing and the fishing of overfished stocks, have found their way into the initial draft of the Agreement.

Regarding IUU fishing, which accounts for more than 30% of all fishing activities worldwide (Government of Canada, 2021), the keystone of an effective agreement will be the reinforcement of monitoring, control, and surveillance (MCS) mechanisms of Member States. To ensure effective and low-cost MCS mechanisms, regional cooperation, which has proven to be efficiently working, should be the watchword. Case in point, the South Pacific Forum Fisheries Agency Global, recognized as “the most productive tuna fishing grounds in the world”, has successfully employed strategies like regional sharing of enforcement costs and sharing catch and compliance information (Bergh & Davie, 2009). On a global level, the Global Record of Fishing Vessels, Refrigerated Transport Vessels, and Supply Vessels, primarily aiming at combating IUU fishing, is an attempt at making easily available certified data from State authorities about vessels and vessel-related activities.

Besides, practices related to flag identification, such as flags of convenience, which are intimately linked to IUU fishing, should face stricter regulations. In a draft agreement published in June 2021, section 5.4 stated that “no Member shall grant or maintain subsidies for a vessel not flying the flag of the subsidizing Member” (WTO, 2021). However, in the latest version of the Agreement, this section was replaced with more lenient language in section 5.2, stating that “a Member shall take special care and exercise due restraint granting subsidies to vessels not flying that Member’s flag”.

The well-known and documented relationship between the use of flags of convenience and IUU fishing was highlighted in a 2017 study by the INTERPOL, revealing that 82.2% of assessed vessels engaging in IUU fishing were using a flag of convenience (INTERPOL, 2017). Therefore, a step backwards with the reintegration of section 5.4 is called for. Being aware of such a relationship and allowing Members to subsidize vessels not carrying their flag amounts to supporting these illegal activities.

As for overfished stocks, article 4 of the Agreement currently grants full responsibility to the relevant State or RFMO/A to determine whether a stock is being overfished based on “the best scientific evidence available to it”. Essentially, the implementation heavily relies on Members’ willingness to cease subsidizing activities contributing to overfishing. A more effective approach to implementing such practices would have involved establishing an objective and universally applied definition of what constitutes an overfished stock. Maximum sustainable yield (MSY), defined as “the maximum catch (in number or mass) that can be removed from a population over an indefinite period” (Maunder, 2008) is widely recognized and used within the scientific community and could serve as a solid starting point for the objective definition of an overfished stock within the context of the Agreement.

In parallel, numerous Members have shown their interest in taking a more assertive stance in reducing capacity-enhancing subsidies (or those contributing to overcapacity). Despite various suggestions as to how this should be put into application, many Members seem to have opted for a cap-based approach. Notably, a proposal jointly crafted by Argentina, Australia, the United States, and Uruguay proposes a classification of Members based on their contribution to global marine capture production (WTO, 2019). According to SubsidyExplorer findings, a tool developed to measure and compare proposals made by Members, this proposal stands out as one of the most effective in terms of biomass changes and revenue increase.

The proposal suggests dividing Members into three tiers, each obligated to set a monetary cap on fisheries subsidies. Members in the first tier, contributing to 0.7% or more to global marine capture production, would negotiate individual “subsidy caps” or accept a default annual cap of $50 million if historically known for low or no subsidies. Members in the second tier, contributing to over 0.05% but less than 0.7% of global marine capture production, would similarly negotiate a cap or adhere to the $50 million limit. Finally, Members in the last tier, contributing to less than 0.05% to global marine capture production, would not be obliged to set a cap.

While the proposal stands out as the most logical, effective, and realistic, there is still merits in considering potential refinements to enhance its efficacy. To incentivize Members to continue investing in beneficial subsidies and prevent disparities among Members, the imposed cap should be a percentage of their total monetary investment in fisheries subsidies. Therefore, if a Member wishes to increase the monetary value of their capacity-enhancing subsidies, they will need to raise the overall monetary value of their fisheries subsidies, inevitably boosting their investment in beneficial subsidies and mitigating the adverse effects of capacity-enhancing subsidies.

This approach reduces capacity-enhancing subsidies while creating an incentive for increased investment in beneficial subsidies. For instance, Members in the first tier could commit to a capacity-enhancing subsidies ceiling rate of 20%, those in the second tier to 30%, and Members in the last tier would have no cap. The idea of setting caps based on a percentage instead of a fixed monetary amount is not a novel idea by any means, rather one that has been researched, reflected on and proposed by no other than by the most important contributor to global marine capture (17% of global marine capture), a country whose capacity-enhancing subsidies accounted for 80% of their total fisheries subsidies granted in 2018, China. This only demonstrates merits of cooperation and the recognition of all Member proposals’ strengths.

Final note

The eagerness to shift towards sustainable practices is evident. However, upon examining the Agreement, there seems to be a hesitancy among states to take the plunge (no pun intended). The measures implemented to address IUU fishing and the depletion of overfished stocks are commendable, yet they will need to be more stringent for substantial and lasting positive changes. Addressing overfishing and overcapacity must be the first item on the list at the next Ministerial Conference.

The cap-based approach, favored by numerous Members, proves to be an effective method for attaining results that are both environmentally and economically beneficial. This approach ensures equitable outcomes without hampering countries’ competitiveness in the global market and, akin to the insightful narrative of the Harvard graduates and the fisherman, invites reflection on the profound philosophy of equilibrium in our collective journey towards global sustainability.

About the author:

Audrey Beaulieu.

Audrey Beaulieu is a Canadian legal professional. She holds a bachelor’s degree in international development, a licentiate in civil law, and a Juris Doctor. While currently pursuing an MBA, she specializes in the intersection of agriculture and international trade.

With experience at the Supreme Court of Canada and contributions to humanitarian projects in Latin America with Lawyers without Borders Canada, Audrey seamlessly integrates legal expertise with a strategic business approach in her current role within the legal department of a national acquisition company.

Bibliography

Food and Agriculture Organization of the United Nations. (2022). Global fisheries and Aquaculture at a Glance. https://www.fao.org/3/cc0461en/online/sofia/2022/world-fisheries-aquaculture.html (January 24, 2024)

World Trade Organization. (1995). Agreement on Subsidies and Countervailing Measures.

https://www.wto.org/english/docs_e/legal_e/24-scm.pdf

Sumaila & al. (November 2019). Updated estimates and analysis of global fisheries subsidies.

https://www.sciencedirect.com/science/article/pii/S0308597X19303677

Sumaila & al. (June 3, 2022). SubsidyExplorer: A decision-support tool to improve our understanding of ecological and economic effects of fisheries subsidies – S1 Appendix. https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0265829

The World Bank. (2009). The sunken Billions – The Economic Justification for Fisheries Reform. https://documents1.worldbank.org/curated/en/656021468176334381/pdf/476060PUB0Sunk101Official0Use0Only1.pdf

The World Bank (2017). The sunken Billions Revisited – Progress and Challenges in Global Marine Fisheries. https://openknowledge.worldbank.org/server/api/core/bitstreams/d6ac5090-673e-5d7b-a4ba-92e05c7f830b/content

Organization for Economic Cooperation and Development (OECD) & Food and Agriculture Organization of the United Nations. (2022). Agricultural Outlook 2022 -2031 – Fish. https://www.fao.org/3/CC0308EN/Fish.pdf

Government of Canada (July 7, 2021). Government of Canada continues fight against Illegal, Unreported and Unregulated Fishing. https://www.canada.ca/en/fisheries-oceans/news/2021/06/government-of-canada-continues-fight-against-illegal-unreported-and-unregulated-fishing.html

Bergh, E. & Davie, S. (September 2009). Chapter 8: Fishery Monitoring, Control, and Surveillance. https://www.fao.org/3/y3427e/y3427e0a.htm#bm10.1

World Trade Organization. (June 30, 2021). Negotiating Group on Rules – Fisheries Subsidies – Revised Draft Consolidated Chair Text. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/TN/RL/W276R1.pdf&Open=True

INTERPOL. (2017). Chasing Red Herrings – Flags of Convenience, Secrecy and the Impact on Fisheries Crime Law Enforcement. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjStJ65tPSDAxVehIkEHbPoAe4QFnoECBYQAQ&url=https%3A%2F%2Fwww.interpol.int%2Fcontent%2Fdownload%2F5146%2Ffile%2FChasing%2520Red%2520Herrings%2520Report.pdf&usg=AOvVaw3Q7tiOB3oDp736vA4mu9lo&opi=89978449

World Trade Organization. (July 11, 2019). A Cap-Based Approach to Addressing Certain Fisheries Subsidies – Submission of Argentina, Australia, the United States and Uruguay. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/TN/RL/GEN197R2.pdf&Open=True

World Trade Organization. (June 4, 2019). A Cap-Based Approach to Address Certain Fisheries Subsidies that Contribute to Overcapacity and Overfishing – Communication from China.  

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjI7u3AnPSDAxXBAHkGHfDNCz4QFnoECBQQAQ&url=https%3A%2F%2Fdocs.wto.org%2Fdol2fe%2FPages%2FSS%2Fdirectdoc.aspx%3Ffilename%3Dq%3A%2Ftn%2Frl%2Fgen199.pdf&usg=AOvVaw0MN45MqfnYWv-C-_tvvjKC&opi=89978449

Netherlands, get up!

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Netherlands, get up!

Embrace Exercise: A Call to Action

Exercise it’s a vital component of a healthy lifestyle. In the Netherlands, however, the statistics are concerning. Only 44% of Dutch people meet the exercise guidelines, a figure that’s dwindling.

Marjolein Bolhuis-Eijsvogel, temporary chairman of the Netherlands Sports Council, puts it bluntly: “We no longer have time to lose to exercise more if we want to give Dutch people a longer healthy life. A change of course is needed in the short term. Only 44% of Dutch people meet the exercise guidelines and that share is becoming increasingly smaller. Moreover, we are European sitting champions. So we’re moving backwards. This leads to 5,800 premature deaths per year and costs 2.7 billion euros in healthcare expenditure every year.”

The NLsportraad has sounded the alarm, urging the Dutch government to prioritize exercise as a fundamental aspect of daily life. Their advice, titled ‘Netherlands, get up! Make sufficient exercise a given every day’, advocates for a comprehensive approach involving various sectors of society.

A State Secretary for Exercise and Sports

Central to the NLsportraad’s recommendations is the appointment of a State Secretary for Exercise and Sports. This official would spearhead a coordinated effort across ministries to develop a long-term strategy for promoting daily exercise. By involving multiple government departments, including health, education, and urban planning, a holistic approach can be adopted to tackle the issue at its core.

A Collective Responsibility

Exercise shouldn’t be viewed as solely a personal choice but as a collective responsibility. In a society where economic growth and technological advancements often discourage physical activity, structural changes are imperative. The NLsportraad emphasizes the need for collaboration between government, businesses, civil society, and citizens to create an environment conducive to exercise.

Coalitions for Change

To make exercise more accessible, the NLsportraad advocates for the formation of coalitions involving various stakeholders. These coalitions would assess barriers to exercise in different settings such as workplaces, healthcare facilities, schools, and urban spaces. By working together, these entities can implement initiatives that integrate exercise into daily routines.

Incentives for Action

Beyond providing information, the NLsportraad proposes utilizing incentives to promote exercise. This includes initiatives like car-free streets, expanded pedestrian and cycling infrastructure, and creating ample play spaces in childcare centers.

Look for the advice Netherlands, get up! and more information about the NLsportraad at https://www.nederlandse-sportraad.nl/

First working visit to The Länd by British DHM Kieran Drake 

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First working visit to The Länd by British DHM Kieran Drake 

Friday, 19 January, Stuttgart, Baden-Württemberg, Germany: The United Kingdom’s Deputy Ambassador Kieran Drake made his inaugural visit to Stuttgart, capital of the southwestern German federal state of Baden-Württemberg. 

Top diplomat Kieran Drake was received by the Head of the State Chancellery, State Minister Dr. Florian Stegmann at the State Chancellery’s premises. The two dignitaries discussed opportunities for further strengthening the relationship between the UK and Baden-Württemberg building on the existing strong ties: Baden-Württemberg represents 13 percent of all German investment into the UK, with over 400 companies who employ 109,000 people. There are 149 UK companies invested in Baden-Württemberg, employing 28,000 people; in 2021 the UK and Baden-Württemberg signed an Economic Partnership followed by the opening of a Baden- Württemberg representation office in London, and the signing of a Joint Declaration between Baden- Württemberg and the devolved Welsh Government in November last year.

Mr Drake also visited the headquarters of the Stuttgart Police to discuss their preparations for hosting the UEFA Euro 2024 Mens Football Tournament, including a match between Scotland and Hungary to take place on 23 June 2024. The UK estimates over 500,000 fans will travel to Germany this summer for the tournament and the British Embassy is working closely with German partners to prepare for the occurance. 

Deputy Ambassador Drake was accompanied during his visit by the British Honorary Consul in Stuttgart, Dr. Fritz Oesterle.

Kieran Drake has been serving as Deputy Head of Mission at the British Embassy in Germany since August 2021. Kieran joined the UK Civil Service in 2005 and has held senior roles in a range of Government Departments including the Cabinet Office, HM Treasury, and the Department for Exiting the European Union. He holds a MA (Hons) in Geography from Cambridge University.

The Deputy Head of Mission is a senior diplomat and typically a key advisor to the Ambassador or High Commissioner. They represent the UK’s interests in the absence of the Ambassador in the capacity as Chargé d’affaires. 

For further information 

British Embassy in Germany: https://www.gov.uk/government/people/kieran-drake 

State Chancellery of Baden-Württemberg: https://stm.baden-wuerttemberg.de/de/ministerium/staatsminister-und-chef-der-staatskanzlei/ 

Representation of Baden-Württemberg in the UK: https://bwuk-office.de/en/ 

The Ambassador of Mauritania, H.E. Mr. Ould Brahim Khlil Zemm

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The Ambassador of Mauritania, H.E. Mr. Ould Brahim Khlil Zemm

His Excellency Mr. Mohamed Mahmoud  Ould Brahim Khlil Zemm,  Ambassador of the Islamic Republic of Mauritania, presented his Letters of Credence to His Majesty King Willem Alexander on Wednesday, January 31, 2024.

Mr. Mohamed Mahmoud  Ould Brahim Khlil Zemm,  was born on November 28, 1964 in Atar (Capital of the Adrar region, in northern Mauritania). He holds a doctorate in political science from the University of Paris Descartes (Paris V) and several higher degrees in the fields of diplomacy, philology and communication. He began his administrative career in July 1999 as Technical Advisor to the Minister of Communication and Relations with Parliament. He was then appointed First Counselor at the Embassy of Mauritania in Paris in 2003.

From 2005, he held high positions, particularly in the field of diplomacy. So he was:  Ambassador, Permanent Representative to UNESCO (from October 29, 2005 to November 15, 2006),  Ambassador to the Hashemite Kingdom of Jordan (from November 15, 2006 to May 15, 2007),  Ambassador to the Kingdom of Belgium, to the European Union and, as such, Permanent Representative of Mauritania to the Union for the Mediterranean, the Group of ACP Countries, the North Atlantic Treaty Organization (NATO), the World Trade Organization, the International Organization for the Prohibition of Chemical Weapons, Ambassador to the Netherlands and Luxembourg with residence in Brussels (from December 14, 2009 to September 19, 2012),  Ambassador to France, Portugal and the Kingdoms of Sweden and Denmark with residence in Paris (from September 19, 2012 to May 15, 2014),  Ambassador to the Federal Republic of Germany, No-Resident Ambassador to Poland, Ukraine, Czech Republic, Slovakia, Romania, Hungary, Austria, Lithuania, Latvia and Estonia ( May 15, 2014 until September 1st , 2023).

Mr. Mohamed Mahmoud Ould Brahim Khlil Zemm,  was also:  Minister in charge of relations with parliament and civil society (from May 15, 2007 to May 11, 2008),  Minister of Tourism and Crafts (from May 11, 2008 to August 6, 2008),  Adviser in charge of communication at the Presidency of the Republic (from November 4, 2008 to December 14, 2009).

During his diplomatic career, Mr. Mohamed Mahmoud Ould Brahim Khlil Zemm,  took part in several international conferences and colloquia organized by the North Atlantic Treaty Organization, the European Union, the Union for the Mediterranean, the group of African-Caribbean-Pacific countries, the United Nations Industrial Development Organization, the United Nations Office on Drugs and Crime, the Comprehensive Nuclear Test Ban Treaty and the International Atomic Energy Agency.

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