The Australia-European Union Free Trade Agreement and Brexit: QUT Symposium
The Australia-European Union Free Trade Agreement and Brexit
QUT Intellectual Property and Innovation Law Research Program
Thursday, 26 July 2018
This event will focus upon intellectual property, trade, and innovation in Australia, the United Kingdom and the European Union. In particular, this research workshop will focus upon the Australia-European Union Free Trade Agreement, and Brexit. This event will build upon our past events on international trade, looking at the Trans-Pacific Partnership and the Regional Comprehensive Economic Partnership.
Firstly, it will consider the debate over Brexit, and its implications for intellectual property and trade for the European Union and the United Kingdom. As the work of Dreyfuss and Dinwoodie has shown, there has been concern about a ‘great unraveling’. It will consider the suggestion that the United Kingdom could join the Trans-Pacific Partnership in the wake of Brexit — in spite of its geographical distance from the Pacific Rim.
Secondly, it will consider the Australia-European Union Free Trade Agreement, and outstanding controversies in respect of intellectual property, trade, and investment. In particular, it will examine the conflicts over geographical indications relating to Prosecco — which has been a flashpoint in the negotiations. It will also explore potential joint collaboration on research and development and innovation between Australia and the European Union.
This event is part of a larger research theme of the QUT Intellectual Property and Innovation Law Research Program, looking at Globalisation, International Trade, and Sustainable Development.
Title: The Digital Economy — a global perspective
Professor Marek Kowalkiewicz
Head of Chair in Digital Economy
Leader of IFE Embracing Digital Age theme QUT
The Digital Economy has given rise to completely new phenomena, changing the way we live, work, and think. It has challenged our understanding of the world, and made some of our ways of measuring it (productivity, wellbeing, or global trade) obsolete. In this talk, Professor Marek Kowalkiewicz will outline the exciting challenges and opportunities of the digital economy, and discuss how they are being addressed by QUT’s academics and their partners around the world, including Europe.
Professor Marek Kowalkiewicz has spent the last ten years working with small and large businesses, governments and individuals in Australia, Singapore and Silicon Valley. He has been helping them to address challenges and identify opportunities brought by the digital economy. Marek is a Professor in Digital Economy at QUT, a board member, and a startup founder. He is passionate about understanding how trends in business, technology, and communities change the way we live, work, and think.
Free Trade, Globalisation and the Anglosphere: analysing the elite the drivers of Brexit
Dr Ben Wellings
School of Social Sciences, Monash University
Brexit is routinely portrayed as a revolt of those ‘left behind’ by the benefits of globalisation and a revolt against the ‘cultural anxieties’ of the current age. Such elements are easily discernible in the motivations of ‘Leave’ voters. Yet concentrating on this aspect of the vote for Brexit obscures an important dynamic that became more apparent as the negotiations for UK withdrawal unfolded: that at an elite level, Brexit was championed by those who felt that there had not been enough globalisation in the United kingdom rather than too much. Withdrawal required an alternative to the UK’s membership of the EU and this was provided by a new idea with older antecedents called ‘the Anglosphere’. At its heart, the Anglopshere consisted of five ‘core’ nations (The USA, the UK, Canada, Australia and New Zealand) that were united by language, culture and history and who all understood the correct relationship between states and markets as prescribed by proponents of ‘Anglobalisation’. Free trade agreements were crucial to the Brexiteer project, and despite enthusiasm from Australia and New Zealand, a strong counter-current from the USA threatened to strangle this strategy at birth, a strategy that was undermined by the enduring ties of regional trade. The strategy contained further risks: by promoting an FTA and hyper-global agenda, the elite leaders of Brexit risked inflaming more of the political resentments that they capitalised on to bring about Brexit in 2016.
Dr Ben Wellings is a lecturer in Politics and International Relations, and the Deputy-director of the Monash European and EU Centre in the School of Social Sciences at Monash University. Dr Wellings is an expert on Brexit and the politics of nationalism and Euroscepticism in contemporary Europe. He was educated at the University of Sussex, Edinburgh University and the Australian National University. He has worked in the House of Commons and for a public affairs company in Edinburgh advising clients on the impact of Scottish devolution, as an assistant curator at the National Museum of Australia and as a merchant seaman on the English Channel.
Just Keep Calm & Carry On: The Impact of Brexit on Intellectual Property Laws in Britain and the European Union
Dr Alexandra George
Faculty of Law, UNSW
Britain’s decision to “Brexit” from the European Union (“EU”) has generated great uncertainty about what will happen to existing and future intellectual property laws and interests.
This paper examines the effects that Brexit seems likely to have upon copyright, patent, trademark and design law in Britain and the EU. It outlines the current frameworks in operation in each of these areas, and discusses how these might be developed in response to Britain’s departure from the EU. Brexit’s prospective impacts on plant variety rights, geographical indications, semiconductor topographies, trade secrets, and intellectual property practice issues in the EU and Britain are also considered.
The paper concludes that, from an intellectual property perspective, the economic interests of both Britain and the rest of the EU are likely to be best served in the mid- to longer-term by taking a “soft Brexit” approach to intellectual property laws. Avoiding rhetorical posturing or retaliation for perceived slights seems, ultimately, likely to produce the best intellectual property-related consequences for both parties.
Britain and the EU both stand to damage their commercial environments if their intellectual property arrangements are dramatically altered as a result of Brexit. By contrast, if Britain maintains many existing single market arrangements with respect to intellectual property law — even at the cost of reducing the policy-making freedom that it would enjoy under a “hard(er)
Brexit” — the result may be mutually beneficial interdependence. This would arguably produce the best commercial outcomes for the EU and Britain alike.
Dr Alexandra George joined the UNSW Law Faculty in 2007, having had earlier academic appointments at Queen Mary, University of London, the University of Wales, Swansea and the University of Exeter in the UK. She has also worked at the European University Institute, Florence, Italy and at the University of Sydney, has practised as an intellectual property and media lawyer, was Associate to Justice MF Moore in the Federal Court of Australia and the Industrial Relations Court of Australia, and worked in journalism at Reuters.
Alexandra’s research focuses on international intellectual property and the philosophy of intellectual property law. Recent publications examine issues of jurisdiction and enforcement in international intellectual property law, including intellectual property implications of Brexit. Her research also examines issues such as the metaphysics and structure of intellectual property law, and ‘property’ concepts in the commodification of intangible objects.
Her book Constructing Intellectual Property (Cambridge University Press, 2012) examines the ways in which the legal system defines into existence and regulates intellectual property. By analyzing the metaphysical structure of intellectual property law and the concepts the legal system uses to construct ‘intellectual property’, the book helps to explain the role of intellectual property from a structural — rather than the traditional normative — perspective.
In 2013, Alexandra received a Vice-Chancellor’s Award for Teaching Excellence at UNSW. In 2016, she was named ‘Academic of the Year’ at the national Lawyers Weekly Women in Law Awards, and awarded a Pro Bono Award for her work for The Arts Law Centre of Australia.
Future Australia-European Union Free Trade Agreement and copyright: what could we expect in the IP chapter?
Dr Rita Matulionyte
The University of Newcastle
The presentation discusses what copyright provisions the future Australia EU FTA could contain in the IP Chapter. Looking at the more recent agreements that the EU negotiated with other countries, such as FTAs with South Korea (2011), Canada (2014) and, most recently, Japan (2017), and the significant differences between IP chapters in those agreements, it is rather difficult to speculate what copyright provisions EU might want to see in the FTA with Australia. If EU-Canada FTA is used as a blueprint, it could be a rather easy win for Australia with no need to raise copyright protection standards. However, if the EU chooses to push for stronger protection and attempts to export its own most recent copyright law provisions, like it did with Japan, the negotiation would be more interesting. Depending on how successful the adoption of the proposed EU Directive on Copyright in the Single Digital Market is, the negotiations with the Australian government may include such issues as extended term of protection to record companies (from 50 to 70 years), a new right to press publishers and a new duty on Internet intermediaries to apply technical measures with the purpose to control copyright piracy online.
Rita Matulionyte is a lecturer at the Newcastle Law School and an associated senior researcher at the Law Institute of Lithuania, with a research focus on intellectual property law, especially copyright and creative industries. After accomplishing her PhD at the Max Planck Institute for Intellectual Property and Competition Law (Germany) in 2010, she worked as a lecturer at the University of Hannover (Germany), had a post-doc at Kyushu University (Japan), and was a deputy director of the Law Institute of Lithuania. She had internships in the European Commission and the World Intellectual Property Organization, and has since been closely following the European and international developments in the area of IP law. She has a list of over 30 peer-reviewed publications, mostly in in the area of copyright law and creative industries, has produced a few reports for governmental organizations (European Patent Office, European Commission, the Government of South Korea, the Government of Lithuania etc) and has been invited to speak in conferences in the US, Japan, Hong Kong, Singapore and elsewhere.
Title: The Prosecco Wars: Intellectual Property and Geographical Indications under the Australia-European Free Trade Agreement
Professor Matthew Rimmer
QUT Faculty of Law
Historically, Australia’s laws on trade mark law and geographical indications have been affected by a number of bilateral agreements with the European Union. The European Community-Australia Wine Agreement 1994 led to amendments of the Australian Wine and Brandy Corporation Act 1980 (Cth) — and comprehensive protection in respect of geographical indications in respect of wine and spirits. There was significant litigation over the boundaries over Australian geographical indications — particularly in Coonawarra and the King Valley. There have also been tensions in other regions such as the Hunter Valley and the Margaret River. The rules on geographical indications were further updated by the European Community-Australia Wine Agreement 2007.
There has been significant debate this time round over the fate of Prosecco wines produced in Victoria. Italy has indicated that it wants a geographical indication for Prosecco during industry discussions. Australian wine-makers have been irate about this proposal. Ross Brown from Brown Brothers has argued: ‘We’re in the box seat if we manage the opportunity correctly. It’s quite a sleight of hand for the Italians to claim prosecco as a GI when for so long it’s been a grape variety … it’s a commercial clawback opportunity.’
Australian trade minister Steve Ciobo has maintained: ‘Every effort will be made to maximise our access to the EU market, while also seeking geographical indications outcomes that will enable continuing use of grape variety names, such as prosecco, for Australian wine products.’ Federal Opposition workplace relations and rural and regional Australia assistant spokeswoman, Lisa Chesters, said she was worried about the potential for international GIs to hurt more Australian industries. ‘I’ve got serious concerns about geographical indicators because where does it begin and where does it end? What’s next? It would be the equivalent of you can no longer call pizza pizza … what do you call it and how do you market that? That’s that great Australian story, that you bring a part of your culture with you and grow an industry from it.’
There has also been debate over whether the European Community will seek to expand the protection of geographical indications to include food and foodstuffs under the proposed new trade agreement. Historically, Australia has relied upon trade marks to protect regional food — such as King Island cheese and beef, Beechworth honey, and Bega Cheese. The Australian Competition and Consumer Commission has brought action in respect of the misleading and deceptive origin of food products — for instance, in relation to beer labelling. There has also been discussion of the utility of geographical indications to protect Indigenous intellectual property — for instance, in relation to genetic resources.
To further complicate matters, Australia is considering the Trans-Pacific Partnership (TPP-11) this year. Despite the departure of the United States, the text of the agreement still bears the hallmarks of American influence — particularly in respect of trade mark law and geographical indications.
Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law, at the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC) the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IP IL). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Regional Comprehensive Economic Partnership, and the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at QUT ePrints, SSRN Abstracts, and Bepress Selected Works.