Regulatory transitions in energy and law: the place of IP

The impact of technology can depend on regulatory approaches taken to the technology, the values which underpin the regulation, the transitions which are sought to come about, and the extent to which one form of regulation can prevail over another. This paper will explore the intersection between intellectual property (IP) rights and changes in approach to oil regulation in the UK and in Canada, which regime has prevailed so far, and the consequences this brings about for IP and its place in encouraging innovation and for the delivery of wider (or other?) societal goals.

IP rights confer the power to prevent activity of others and legislation in the UK and Canada confers positive permission to drill for oil. To enable this drilling to take place most efficiently, legislation was passed in both countries - in the UK the Energy Act 2016, Petroleum Act 1998 (as amended), 2018 secondary legislation and in Canada the Petroleum Resources Act 1985. Through this, key seismic information and details of the subsurface are to be shared with the regulators (in the UK as part of an ongoing programme of sharing and collaboration termed Maximising Economic Recovery) and then more widely across the industry, including with competitors.

It remains to be seen if the UK legislation could lead to a human rights based challenge. In Canada, Geophysical Services v Encana (2017) considered the extent to which use by others of the obtained information was infringement of copyright. The appeal court found, based on principles of statutory interpretation, that the oil legislation prevailed over the rights of the copyright owner. The decision is a rare example of a court having firstly the structural opportunity to consider another area of law as against IP law and secondly reaching a substantive decision which finds against IP law. A useful comparator lies in the Magill and IMS health competition and copyright cases in the EU from the 1990s and 2000s: is there once again an underpinning silent justification that the material may be considered not to warrant the existence of the right or of its enforcement? The decision of the Canadian Supreme Court in Keatley Surveying v Teranet (2019) and its approach to Crown Use provides a valuable further lens. Yet the power of IP can continue, with an investor state dispute settlement claim having been raised under NAFTA by Geophysical Services against Canada.

From these bases, this paper will make proposals regarding the implications for transition in one sector when it is faced with the values and pathways of other areas of law.