The diplomatic crisis of Qatar and Gulf Cooperation Council's IP

"Qatar's National Day (4) - Explored" 

by Mohammed Almousawi – CC BY

What does the recent and ongoing diplomatic crisis of Qatar mean for IP?

Katfriend Riyadh Al-Balushi (SOAS University of London) explains it all.

Here’s what Riyadh writes:

“The Gulf Cooperation Council (GCC) - a union made up of Bahrain, Kuwait, Oman, Qatar, Saudi, and the UAE - is facing a major diplomatic crisis due to political differences between Saudi, Bahrain, and the UAE on one side, and Qatar on the other. The differences between these countries became public last month when Saudi, Bahrain, and the UAE cut off diplomatic relations with Qatar, banned their own nationals from staying in Qatar, deported all Qatari citizens from their territories, and closed off land borders, airspace, and water territories for Qataris.

The future of the GCC is now uncertain, especially after Qatar officially rejected the demands made the Saudi camp. With no solution to the crisis in sight, it is important to take a moment to consider what this crisis means for GCC intellectual property law and how it affects Qatari rights-holders. Even though the GCC is not as deeply integrated as the EU, the GCC still has a body that issues a region-wide intellectual property right (the GCC Patent Office), has some intellectual property laws that apply across the entire region (e.g. the GCC Trade Mark Law), and has a legal instrument that recognises intellectual property as a fundamental right (the Gulf Declaration of Human Rights).

Unlike the EU, the GCC is not a supra-state, has no legal personality separate from its Member States, and these Member States have not delegated any of their authorities to the GCC. The GCC also does not have EU-style Directives or Regulations that are automatically legally binding on any of its Member States. Decisions made by the GCC are binding on its Member States only if these decisions are made unanimously. Also, in regard to Qatar specifically, international law obligations are, for the most part, not self-executing. This means that even if Qatar ratifies a GCC agreement or any other international agreement, that agreement will not have the power of law in Qatar without specific implementation through a domestic legal instrument such as a royal decree. However, even with all these limitations on the power of GCC, the GCC has been successful in creating a number of pan-GCC intellectual property initiatives that are legally operational in Qatar as well as the rest of the Gulf, and which are now threatened by the current diplomatic crisis.

The GCC patent is the most obvious Gulf intellectual property right that will be affected as this crisis continues. Since 1992, the GCC has had a pan-GCC patent right that enables anyone to apply through the GCC Patent Office in Riyadh to acquire patent protection in the entire GCC. The GCC patent system is not a system that facilitates making multiple patent applications through a one-stop shop, but a system that grants an actual single patent right that applies across the whole region. At the time of its creation in 1992, Qatar did not have a domestic patent law, which meant that the only way to acquire patent protection in Qatar at that time had to be done at the GCC level. However, all GCC Member States now have their own national patent systems in addition to the GCC patent system, but the GCC patent system remains as a parallel system that can be used to acquire patent rights with a much larger geographical scope.

Even though the GCC Patent Office is based in Riyadh, applying for patent protection at the GCC Patent Office can be done online and does not require travelling in person. Therefore, the current ban of Qatari nationals in Saudi should not, on its own, restrict the ability of Qatari nationals to apply for GCC patents. However, the GCC Patent Appeal Committee, which examines challenges made to revoke a patent, includes two nationals of each Member States. The two Qatari nationals who are members of this committee will not be able to attend any hearings that take place at the GCC Patent Office under the current blockade. Normally, one of the conditions for the meeting of this committee to be valid is for at least one committee member from each State must be present. The inability to have a valid meeting of this committee is not problematic just for Qatar, but for the proper legal functioning of the entire GCC Patent System. However, if a State has no representation in a single meeting, the regulations require the meeting to be postponed for two weeks, and if there are still no attending committee members from that same State, the meeting can be considered valid if all other conditions are met. Therefore, the inability of Qatari committee members will not necessarily affect the operation of the GCC Patent Office, even though Qataris will not be able to have a say in the decisions of the Appeal Committee.

If the blockade imposed by Saudi, the UAE, and Bahrain results in ejecting Qatar out of the GCC entirely, it is unlikely that Qatar will be able to remain as part of the GCC patent system without being a member of the GCC – because the GCC Patent System operates within the GCC legal system. The GCC Patent Regulations explicitly define its scope of application as the GCC, and the body responsible for issuing its implementation codes is the Ministerial Council – a body within the GCC structure. If Qatar is officially no longer part of the GCC Patent System, the scope of the protection granted by the GCC patent will shrink from six States to five States – which will make the GCC patent somewhat of less value to inventors. That being said, being able to apply for a GCC patent is not connected with membership to the GCC. Anyone from any nationality may apply for a GCC patent irrespective of nationality, and Qataris will not have any legal barriers from applying for one.

While GCC patents will not be protected in Qatar if Qatar is no longer part of this system, Qatar can still offer patent protection through its domestic patent system, which is independent of the GCC.

In addition to the patent protection, the GCC has a region-wide policy for trademark protection through the GCC Trade Mark Law. On the one hand, the GCC Trade Mark Law is more pervasive than the GCC patent system because it does not allow Member States to have their own domestic alternative to it, but on other hand, it is less significant than the GCC patent system because it does not create a pan-GCC trade mark right, and instead merely unifies trade mark law across the whole GCC. Under this law, individuals are still required to register their trade marks in each Member State through the domestic competent authority and there is no central body that can accept trade mark registration for the entire region. The adoption of this unified law requires individual action of each of the Member States. Qatar has issued a royal decree to adopt the original version of the GCC Trade Mark Law in 2002 as well as the most recent version of the law in 2014, but it does not appear that Qatar has domestically implemented the executive regulations that are necessary for the 2014 law to enter into force.

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The diplomatic crisis of Qatar is unlikely to have any effect on the operation of the GCC Trade Mark Law in Qatar. Even though it is called the GCC Trade Mark Law, its scope of application is purely domestic. Qatar has implemented the GCC Trade Mark Law into its domestic legal system through a royal decree and from the very beginning made simple adaptations to the text to make the GCC law operate within the Qatari legal system. For example, Article 2 of the Qatari implementation of the 2014 GCC Trade Mark Law stipulates that the executive regulations are to be issued by the Qatari Minister of Economy and Commerce – not the GCC Commercial Cooperation Committee. According to the Qatari implementation of this law, the GCC still has the authority to interpret the law and propose amendments. However, Qatar can easily amend these GCC-related provisions if it chooses to do so.

In addition to these two forms of intellectual property, the GCC recognises the moral and material interests of authors as a fundamental right in the Gulf Declaration of Human Rights of 2014. This declaration appears to provide a higher status to intellectual property than what is offered by the Qatari Constitution, which does not recognise intellectual property as a fundamental right beyond a mention that the State has a duty to ‘foster, preserve and help disseminate the sciences, arts and national cultural heritage, and shall encourage scientific research’. However, the Gulf Declaration of Human Rights is not a legally binding instrument and was not made to be ratified by individual GCC Member States, so it does not give rise to any legal rights that could be lost by the current blockade that Qatar is facing.

All the Member States of the GCC are also members of the WTO, and therefore the failure of Saudi, the UAE, or Bahrain to respect the intellectual property rights of Qataris is probably going to be in violation of their WTO obligations regardless of Qatar’s membership to the GCC. Qatar, Saudi, and the UAE, are also members of the original Arab Copyright Treaty, which means that their failure to respect the rights of Qatari authors is also a violation of this regional treaty.

The GCC is undergoing a crisis and it is impossible to predict how its Member States are going to respond to the legal challenges imposed by the reality of the situation. Apparently, Qatar is already considering using the WTO dispute settlement mechanism (for matters unconnected to intellectual property), and Bahrain has made a statement justifying the actions taken against Qatar on national security grounds. We will just have to wait and see what happens next.”