Regulating critical technologies: National security and intellectual property

Abstract In recent years, claims of ‘national security’ have surged internationally to protect various security interests including public health, economic security and cybersecurity. National industrial strategies for building critical technologies challenge the scope of ‘national security’ in international intellectual property (IP) protection. National security provisions in the WTO are traditionally considered narrowly in the military context or ‘an emergency in international relations' where actions are necessary to safeguard countries' essential security interests. However, it does not appear to reflect the economic and cybersecurity issues emerging from critical infrastructure and new digital technologies beyond wars or emergencies in international relations. On the other hand, many recent Preferential Trade Agreements (PTAs) have expanded the scope of national security to include cybersecurity‐related measures. We investigate the legal solutions in relevant international trade and investment regimes that aim to tackle the unpredictability and instability created by selected trade measures based on national security and other non‐economic objectives in international intellectual property protection. These measures include trade bans on the export and import of digital technologies and blocking investments to prevent the diffusion of intellectual property. In order to prevent abuse and ensure inclusivity, we propose a conditional right for invoking national security grounds to encompass claims reflecting multi‐faceted security interests and a multistakeholder model for governing critical infrastructure and technologies.