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A Discussion Of Trade Secrets And Intellectual Property Rights Within The Frame Of Aarhus Convention

The protection of environment has become more of an issue in the recent years, thus making the ‘access to environmental information’ a topical issue kept on the agenda. Nowadays, in almost every environmental problem or concern, non-governmental organizations and/or nature conscious individuals are filing applications to the relevant organizations and institutions for environmental information thereon. And it is also frequently seen that information requests filed by non-governmental organizations due to environmental damages caused by large companies are rejected by the latter under the pretext of the alleged conflict with trade secrets or intellectual property rights. Furthermore, countries are refraining from signing the international conventions and treaties pertaining to the very important right of access to environmental information again under the cover of the alleged harms to such other rights as trade secrets and intellectual property rights.

This article is going to examine and discuss within the frame of Aarhus Convention the right to a quality environment which is not directly dealt with by intellectual property rights, but is nevertheless in an interdisciplinary interaction therewith.

As one of the most fundamental international law texts on such issues as the right to a quality environment and the right of access of the public to environmental information, the United Nations Economic Commission for Europe (UNECE) “Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters” of 1998, named shortly as “Aarhus Convention”1, has effected national legislation of a great many of countries, but Turkey has refrained from ratifying this Convention on various grounds, also including national security.

First paragraph of Article 4 of the Convention specifies that public authorities, in response to a request for environmental information, are under obligation to make such information available to the public, including copies of the actual documentation containing or comprising such information, without an interest having to be stated thereinfor.2 Thus, it is unequivocally clear that Aarhus Convention provides the public with the right of access to environmental information unconditionally.

However, according to fourth paragraph of Article 4 of the Convention, a request for environmental information may be refused in some certain circumstances. Subparagraphs (d) and (e) thereof are as quoted below:

“(…) If the disclosure would adversely affect:

(d) the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest; (…) or

(e) the intellectual property rights.”

Parallel to this Convention, some restrictions regarding trade secrets and intellectual and art works are imposed also in articles 23 and 24 of the Right to Information Act no. 4982 included in Turkish national legislation.3

Trade secret concept may be simply defined as legal protection conferred on trade secret owner in cases where trade secret owner may be harmed if such information is disclosed, or trade secret owner has an interest in non-disclosure of subject secrets. How must this concept, lacking a clear definition, be interpreted against the right of access to environmental information, and to which extent?

The guidelines on implementation of Aarhus Convention describe how the concept of protection of legitimate economic interests of private corporations should be interpreted. Said document states that for protection of legitimate economic interests, it is required to verify the confidentiality of subject information and to determine the damages, and fourth paragraph of Article 4 of Aarhus Convention provides that said restrictions shall be interpreted in a restrictive way, taking into account the public interest served by disclosure of said information and also taking into account whether the information requested relates to emissions into the environment.4

Miscellaneous complaints regarding access to information are dealt with by the Committee of Compliance to Aarhus Convention (hereinafter to be shortly referred to as the “Committee”), and their relationship with commercial and industrial secrets is evaluated in respect of legitimate economic interests of commercial companies.

For example, in one of these disputes, information has been requested about a Nuclear Power Station built in Romania, but the request of information has not been responded twice. Then, upon refusal of disclosure of information by public authorities in response to third request, the issue has been handled by the Committee under the heading of Greenpeace; Nuclear Power Station, Romania complaint, case file no. ACCC/C/2010/51. In the assessment, it is reminded that paragraph 4(b) of Article 4 of the Convention permits the public authorities to refuse a request of access to commercial and industrial information where such information is protected by law in order to protect legitimate economic interests, but the Convention does not define what commercial and industrial information is and which information is covered thereby, and for this reason, in order to preclude the public authorities from arbitrarily refusing the disclosure of information in the course of use of this exception, both the criteria to be sought for categorization of an information as confidential, and the way to be followed thereat must be clearly described by law.

As a result of its assessment, the Committee emphasized that the public authority must clarify the reasons of its refusal of disclosure of the requested information to the public, and that the Convention is breached through ignorance of the public interests mentioned in fourth paragraph of Article 4 of the Convention.

Protection of commercial and industrial secrets is mostly confronted in requests of environmental information. However, there are also some cases, though not many, where the restrictions imposed by the fourth paragraph of Article 4 of the Convention are in conflict with intellectual property rights and particularly copyright in reliance upon subparagraph (e) stating that private corporations may refuse the requests of information in cases where intellectual property rights may be adversely affected from disclosure. One of these cases is the assessment made by the Committee as a result of the complaint titled Alburnus Maior, NGO, Romania, case file no. ACCC/C/2005/15.5

The party refusing to disclose information has stated to the Committee that Romania Copyright Office reported to the National Environmental Protection Agency that environmental impact studies are scientific works protected by the copyright law, and for this reason, they can be used and disclosed to public only with a prior explicit consent of their author.

The Environmental Impact Assessment (EIA) reports, alleged to be covered by copyright, are texts prepared so as to assess probable positive and negative effects of a project on environment, and to minimize negative effects, and to follow, monitor and control the progress of such project.6

Thereupon, an application is filed to the Committee for assessment of the right of the public and the authorities concerned with the interests protected by copyrights to access to information about potential environmental effects of a certain activity or project.

In response, in Article 29 of its opinions, the Committee argued that EIA works and documents are prepared for use in public dossiers in the course of administrative procedures, and therefore, the author or developer thereof should not have the right to refrain from making such information public in reliance upon intellectual property rights thereon.

Furthermore, it is also defended that the non-disclosure of Environmental Impact Assessment (EIA) works and documents in reliance upon copyright laws is unacceptable, and exclusion of these works and documents from the public disclosure obligations is by no means justifiable since they are already in public domain according to administrative procedures and are presented to public authorities for decision making purposes – particularly in cases where they constitute a part of “information relating to decision making process” -, and for these reasons, such works and documents should be opened to public through public participation

The Committee concluded that although Aarhus Convention permits refusal of requests of the public for some certain information due to intellectual property rights therein in some certain cases, such provisions of exception included in the Convention should be interpreted in a restrictive and narrow way, taking into account the public interests arising out of disclosure of subject information by the related organization / corporation.

Within the general framework, a review of the opinions of the Committee reveals that the trade secret and intellectual property restrictions should not be used in a haphazard way, and the rights should be compared for assessment purposes, and said restrictions can be applied only on the basis of concrete grounds and by taking the public interest principle also into consideration as far as possible.

One of the most important examples that can be given in order to concretize the potential effects and consequences of refusal of disclosure of environmental information on the ground of trade secrets is Bhopal disaster which happened on December 3rd, 1984 and caused death of 18,000 people and intoxication of more than 150,000 people. The disaster was caused by accidental release of 40 tons of methyl isocyanate gas from a factory of insecticides established by Union Carbide in Bhopal in India. Union Carbide has then refrained from disclosing even the name of toxic substance on the ground of “trade secrets”. It is said that this act of non-disclosure has made it impossible to establish a final diagnosis on intoxicated victims, thereby leading to increase of deaths in hospitals.7 This disaster in India clearly proves to which extent it is important to have access to environmental information, and demonstrates the potential consequences of “haphazard” refusal of requests of environmental information under such pretexts of trade secrets and intellectual property rights.

Although the right to a quality environment does not directly interact with the concepts of intellectual property rights and trade secrets, these two concepts are also dealt with exceptionally in many treaties, conventions and laws pertaining to the right to a quality environment. As long as the issue of environmental protection remains as a topical issue, the conflict between these rights and concepts may be the subject of debates in our country as well in the future. We are waiting impatiently to see which point of view will be adopted in general by the courts in the probable future disputes that may be faced as a result of conflict of said rights and concepts.

Aysu TAŞ