Presented by QUT Faculty of Law Intellectual Property and Innovation Law Research Program, QUT Institute for Future Environments, and QUT Chair in Digital Economy
Wednesday, 10 April 2019
8:30am to 5:00pm
As the World Trade Organization has observed: ‘Technology is transforming our lives and our economies — including the way we trade.’
This event will consider how digital technologies — such as electronic commerce, fintech, artificial intelligence, blockchain, 3D Printing, the Internet of Things, robotics, and advanced manufacturing — will transform world trade in the future.
This symposium explore some of the opportunities that such technologies will bring for countries, multinational companies, SMEs and citizens.
This event highlights the need for the reform and adjustment of international trade rules to better take into account such new technologies. Current international frameworks are currently ill-suited to the digital economy.
This event will also consider such public policy challenges — including e-commerce rules, financial regulation, data protection, privacy protection, cybersecurity, and intellectual property.
This forum will provide an opportunity to discuss how these developments will affect trade and multi-lateral trade system. This event will also consider the inter-relationship between trade and sustainable development in its consideration of new technologies. In particular, it will take into account larger concerns about culture, education, health-care, equality, and inclusion.
This event has been the product of collaboration by co-teachers of international trade — looking at how the discipline will be affected by new technologies.
Session 1 — Queensland and the Future of Trade (9:00 am — 9:30 am)
Chair — Anne Matthew, QUT
Government perspective on how technology is transforming our lives and our economies — including the way we trade
Mr Paul Martyn, Chief Executive Officer, Trade and Investment Queensland
Technology is transforming the economy and global trade at a rapid pace. This change presents government, and the constituents they represent, with both opportunities and challenges — opportunities in the form of increased productivity, economic growth and employment in new industries, and challenges such as the changing nature of work, increased competition, and the general disruption of the status-quo. Paul will discuss government’s role in helping the industry and the broader community to embrace technology and innovation and promoting Queensland made technology to the world. Using case study examples, Paul will highlight how technology enables companies to go global, meet new and emerging market trends and attract global investment.
Paul Martyn leads Trade and Investment Queensland, the Queensland Government’s dedicated global business agency. Paul works with more than 220 staff worldwide to help Queensland firms achieve export success and to encourage global investment in Queensland projects. With 15 offices around the world, TIQ has one of the largest global networks of any Australian government agency.
Paul has over 20 years’ experience in economic development, working with industries, firms and regions to successfully grow and compete in a global context. He has held senior roles in policy development, regulatory reform, commercial analysis, investment facilitation and program delivery.
Paul has worked to encourage growth and investment in a wide range of Queensland’s key sectors, including resources and energy, agriculture, manufacturing, tourism, defence industries and high technology.
Prior to joining TIQ, Paul led the implementation of the Queensland Government’s flagship $650 million Advance Queensland (AQ) agenda, working to promote innovation-led economic growth. AQ has been widely acknowledged as the leading state-based innovation initiative, with Queensland overtaking Victoria in numbers of start-ups, and securing global R&D investment in platform technologies.
Paul undertook his Master’s Degree in Science at the University of London on a British Chevening Scholarship, and holds honours degrees in both law and government from the University of Queensland. He was a lawyer in private practice before joining the Queensland Government.
Session 2 — E-Commerce and Digital Trade (9:30 am — 10:30 am)
Chair — Anne Matthew, QUT
The Future of Trade: The Limitations of Australia’s Current Trade Policy Approach, and Recommendations for a New Trade Agenda
Associate Professor Elizabeth Thurbon, UNSW
In its 2017 Foreign Policy White Paper, the Australian Government identified trade agreements as a key tool to advance its foreign policy objectives: from defending the rules-based order against protectionism to ensuring that emerging economies abide by liberal economic principles, to advancing the interests of Australian firms globally. So how well do the trade rules — which Australia is promoting — help advance these objectives? This presentation considers whether Australia’s current trade policy approach is more likely to help or hinder its foreign policy goals, and proposes an alternative approach to trade policy that is more in keeping with the government’s stated economic and political objectives.
Associate Professor Elizabeth Thurbon is a Scientia Fellow and Deputy Head of School (Research) in the School of Social Sciences at UNSW Sydney. She has also held visiting fellowships at Seoul National University and China Foreign Affairs University.
Elizabeth’s research expertise is the (international) political-economy of trade, finance and techno-industrial transformation, with a focus on the developmental role of the state in East Asia and Australia. Her most recent book Developmental Mindset: The Revival of Financial Activism in South Korea was published by Cornell University Press in 2016.
Elizabeth is a regular contributor to public and policy debates on Australian trade and industry policy. She is the co-author of two popular books on Australian trade policy and economic security (with Linda Weiss and John Mathews), and Guest Editor of the 2015 Special Issue of the Australian Journal of International Affairs dedicated to evaluating the Future of Australian Trade Policy in light of the 10-year anniversary of the Australia-US Free Trade Agreement (AUSFTA).
She is currently a Chief Investigator on two large, externally-funded research projects: A 3-year collaborative ARC Discovery Project examining the role of the state in East Asia’s Clean Energy Shift, and implications for Australia (alongside CIs Dr Sung-Young Kim, Prof John Mathews, and A/Prof Hao Tan), and a project examining the Evolution of Financial Activism in East Asia, as part of a 5-year Academy of Korean Studies-funded Laboratory Project based at Seoul National University (alongside CIs Profs Keun Lee, Djun-kil Kim, Jang-sup Shin, Jaeyong Song, and Chan-yuan Wong).
She holds a Ph.D. in International Political Economy from the University of Sydney. She also completed her Economics (Social Sciences) Degree at Sydney University, where she was awarded first class Honours and the University Medal for Academic Excellence.
The Future of Australia’s Digital Trade: Trends and Measurement Issues
Dr Md Shahiduzzaman, Research Fellow, QUT Chair in Digital Economy
In October 2017, digital technology company Clipchamp received the Premier of Queensland’s Export Award. Clipchamp provides a patent-protected in-browser video-production technology stack, which has been sold to international brands, such as Snapchat, McDonald’s, Nike, ESPN, New York Times, the Royal Household, Google, Volvo and many more. With more than 4.3 million registered users, 95% of Clipchamp customers are coming from outside Australia. While we celebrate digital exporters, little information on digital trade currently exists, and we fail at measuring the trade volumes accurately. It is expected that by 2025 Australia’s trade value chain will be mostly digital. How do we capture the values of digital trade? What are Australia’s present trends and future prospects of digital exports? These questions have significant implications to policy, such as market access, trade facilitation and skills development. In this study, we review the measurement and patterns of Australia’s digital trade, information gaps and their implications to the policy.
Dr Md Shahiduzzaman is a productivity analyst and researcher in digital economy at the Chair in Digital Economy, Queensland University of Technology (QUT). He has been actively researching on the impacts of technology to economy, industries and fast-growth small-to-medium enterprises for long. Dr Shahid has published +50 papers in the areas of economic growth, productivity and digital economy — many of these published in leading international journals such as International Journal of Productivity and Performance Management, Telecommunications Policy, Economic Analysis and Policy, Economic Change and Restructuring, Journal of Rural Studies, Energy Economics, Global Environmental Change and so forth.
Shahid’s work has also been published in the Conversation and Australian Financial Review and industry reports. He has led national and international research
Session 3 — Blockchain (11:00 am — 12:00 pm)
Chair — Professor Rosalind Mason, QUT
Blockchain and the Future of Trade
Dr Darcy Allen, RMIT
Darcy Allen will explore the future of trade and global trading patterns through the lens of trade as an information problem. As they travel between producers, intermediate suppliers and consumers goods carry with them information attributes such as provenance and quality. Other information is necessary for regulatory, tax and tariff compliance. Additional information is produced regarding the stewardship of goods– how well they have been looked after in transit — and how those goods are transformed. Blockchains and other distributed ledger technologies are uniquely suited to trace, secure, and update the attributes of goods as they travel across supply chains — vastly increasing the amount of trusted information that is added into global trading networks. By viewing trade as an information problem, we can forecast some consequences for the future of trade in a world of blockchain economy. The presentation will draw implications both for the future of global trade and public policy.
Dr Darcy Allen is an institutional economist and writer focused on the economics and political economy of new technologies. Dr Allen is a Postdoctoral Research Fellow at the RMIT Blockchain Innovation Hub in Melbourne. He writes both in academia and throughout the electronic and print media on topics including the economics of technology and the relationship between regulation and entrepreneurship. Dr Allen is also an Academic Fellow at the Worldwide Blockchain Innovation Association and an Academic Affiliate of the University College London Centre for Blockchain Technologies. He has appeared many times as an expert witness before parliamentary inquiries, been cited in reports tabled in state and federal parliaments, and sits on the editorial boards of several blockchain journals. His PhD thesis in economics was passed outright in 2017 and won the RMIT university-wide prize for research excellence.
Transparency in Animal Welfare and Food Fraud: The Benefits and Challenges of Blockchain for Trade
Dr Felicity Deane, QUT
The high consumer demand for good quality food has arguably led to the prevalence of a number of problems across the supply chain. One significant issue is the prevalence of food fraud. Food Fraud is an intentional act made for economic gain. In addition to deliberate acts of adulteration, fraud would include the circumstances where producers or other related entities make unsubstantiated product quality claims. Food fraud is a prevalent problem, however when we consider this issue in regards to animal material it also intersects with animal welfare concerns. This paper will consider how transparency can potentially address concerns associated with both fraud and animal welfare, and will include a discussion of where these two social costs intersect. In this regard, adhering to improved and dedicated principles of transparency in the regulation of the welfare of animals in agriculture may, in some instances, result in additional benefits for supply chain integrity and sustainability. In addressing the governance of animal welfare, within this paper we suggest that the substantive obligations, associated with regulated standards should be viewed separately to the procedural elements required to achieve these substantive obligations and standards. Although we argue that both the substantive obligations and the procedural aspects of regulations require transparency, it is the latter which presents the greatest need and challenge in terms of animal welfare obligations and the challenges that are experienced by industry participants cannot and should not be ignored. Therefore, in response to these challenges we consider whether technology, in particular blockchain applications, can disrupt the current state of trade and improve transparency in livestock production and the animal material supply chains.
Dr Felicity Deane is a Senior Lecturer at the Faculty of Law, Queensland University of Technology (QUT), Brisbane, Australia. Felicity completed a Bachelor of Law and a Bachelor of Commerce at the University of Queensland in 1999. Immediately following graduation Felicity commenced work and study in the United States in the disciplines of accounting and law. She commenced PhD studies in December 2009 at Queensland University of Technology. Her PhD entitled, ‘The Clean Energy Package and WTO Law: An Analysis of Compliance Issues’ was subsequently completed in August 2013. In January 2014 Felicity commenced her time as a lecturer within the QUT law school on the early career academic program. She has published several articles on the topic of emissions trading, market based mechanisms and the WTO Law. Her book ‘Emissions Trading and WTO Law: A Global Analysis’ was published in March 2015. She has published extensively in areas where economics and the law intersect, in particular regarding emissions trading and other forms of market based mechanisms. Most recently she led a multidisciplinary project which analysed the Regulation of Sugarcane farming practices in Queensland, and has particularly reviewed the option of using a cap and trade model for this regulation. Felicity’s most recent research interest is in the area of Blockchain technology and its use to promote sustainable agricultural practices and food security.
Session 4–3D Printing (12:00 pm -1:00 pm)
Chair — Dr Felicity Deane , QUT
ClearCorrect: Intellectual Property, 3D Printing and the Future of Trade
Professor Matthew Rimmer, QUT
Building upon our recent publication, 3D Printing and Beyond, this paper considers the relationship between intellectual property and trade in the context of 3D printing. This work contends that 3D printing has not only disrupted the discipline of intellectual property, but it has also provided profound challenges for the regulation of trade and globalisation. Part 1 provides a case study of the patent dispute between ClearCorrect and Align Technology as a case study. The ruling of the Court of Appeals for the Federal Circuit will have larger ramifications in respect of the jurisdiction of the International Trade Commission in respect of the digital economy. It considers subsequent patent disputes between the parties before the United States Patent and Trademark Office. Part 2 considers how 3D printing will be affected by the international trade dispute between the United States and China over intellectual property, innovation policy, and advanced manufacturing. It examines whether 3D printing will reverse the pattern of offshoring in the United States. It notes the collateral impact of tariffs upon 3D printing. It also considers the adoption of 3D printing in China, and the issues that may raise in terms of intellectual property ownership, intellectual property infringement, and intellectual property licensing. Part 3 considers larger contextual issues raised by the World Intellectual Property, the World Trade Organization, and the World Economic Forum in respect of intellectual property, trade, and 3D printing. It examines some of the different scenarios in relation to the impact of 3D printing on the future of trade.
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. As a chief investigator of an ARC Project on intellectual property and 3D printing. Rimmer is currently working on research on intellectual property, the creative industries, and 3D printing. He is a co-editor of 3D Printing and Beyond: Intellectual Property and Regulation. He has also been researching 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 Bepress Selected Works.
3D Printing Hope: How MSF’s Initiative Reveals the Potential of Additive Manufacturing for the Future of Sustainable Development
Samuel de Souza Teixeira Lobão, Masters by Research Candidate, QUT
In 2016, the United Nations Sustainable Development Goals came into effect as a blueprint to achieve a better and more sustainable future. Grouped in 17 clusters, they aim to address some of the main challenges faced by humanity by the year 2030. With the philosophical idea of leaving no one behind, the 17 goals interconnect to tackle issues such as poverty, inequality, health and environment.
One of the main challenges faced during the implementation of SDGs is the cost and logistics of getting products and infrastructure to remote and areas with difficult access. By deconstructing the traditional chain of consumption, 3D-Printing brings production and consumers closer than ever before. For its revolutionary characteristics, this technology has the potential of redefining accessibility for underdeveloped areas where the shortage of goods was chronic.
Conducive to this idea, last year the Médecins Sans Frontières Organization announced in-field tests for 3D-Printing and correlated technologies. A field hospital in Amman/Jordan, aiming to provide cheap and customised prosthetic limbs for patients recovering from traumatic injuries in conflict zones. Although experimental, the project has successfully fitted more than 20 limbs to patients from Gaza, Iraq, Syria and Yemen. While new technologies and development are always linked together, not often they deliver the promised breakthrough results. The MSF initiative is a shred of indisputable evidence that 3D-Printing is more than a vague promise, being capable of delivering concrete results to the future of sustainable development.
Samuel de Souza Teixeira Lobao, Attorney in Law (Brazil), L.L.B (Hons) by PUC-MG (Brazil), L.L.M in Intellectual Property (World Intellectual Property Organization — QUT), and M.Phil Candidate in Intellectual Property and Innovation (QUT). While being a complete geek for all kind of technology, Mr Samuel Lobao has a passion for social sciences and law studies. Acknowledging the difficulty of the task, he dedicates his time to understand the constant transformative impacts caused by technological advances in areas such as Cultural Heritage, Intellectual Property, Commerce and Innovation Law. His current work at QUT seeks to understand how 3D-Printing technologies could have a protagonist role in the future of sustainable development.
Session 5 — (2:00 pm — 3:00 pm)
Chair — Professor Rosalind Mason, QUT
Regulating Work and Contracts in a Transnational Sharing Economy
Professor Andrew Stewart, University of Adelaide
The growth of the sharing economy has prompted debate around the world about whether those obtaining ‘gig’ work through digital labour platforms such as Uber, Deliveroo, Airtasker or Freelancer should be regarded as either employees or ‘independent workers’, for the purpose of minimum wage laws or other labour standards. It is also possible that general laws on the fairness of contractual terms may be used to challenge the inclusion of harsh or one-sided provisions in the contracts of adhesion (take-it-or-leave-it contracts) typically drafted and imposed by digital platforms. This presentation will look at the state of play on these issues, both in Australia and other countries. It will also explore some of the ways in which international or transnational regulation might develop in this field.
Andrew Stewart is the John Bray Professor of Law at the University of Adelaide and a Legal Consultant to the law firm Piper Alderman. An expert in employment law and workplace relations, contract law and intellectual property, his recent books include new editions of Stewart’s Guide to Employment Law, Creighton & Stewart’s Labour Law and Intellectual Property in Australia, together with Cooperation at Work (with Mark Bray and Johanna Macneil) and The Wages Crisis in Australia (co-edited with Jim Stanford and Tess Hardy). A new text, Contract Law: Principles and Context, co-authored with Warren Swain and Karen Fairweather, will be published by Cambridge University Press in June 2019. His current research includes Australian Research Council-funded projects on the regulation of unpaid work experience and the organisation of work through digital platforms.
To Intervene or Not To Intervene in the Sharing Economy
Associate Professor Renuka Mahadevan, the University of Queensland
The emergence of the sharing economy has significantly transformed the way in which some services are provided. This has brought about challenges for traditional industries such as those in the hospitality and transportation sector due to Airbnb and Uber respectively. In this context, is there a role for the government to provide a level playing field or should the market be allowed to operate freely? This presentation will shed light on how, why and when intervention may or may be called for in Australia and other countries.
Associate Professor Renuka Mahadevan is an applied economist who works on the Asia Pacific region in areas that include trade, international and development economics, hospitality and tourism. She has written more than 90 journal articles and co-authored five books. She has led international research projects and her multidisciplinary work has been recognised in international media and reports. She is the recipient of the international Understanding China Fellowship in 2018 and has strong research collaboration in China.
Session 6 — Culture (3:30 pm — 4:15 pm)
Chair — Professor Matthew Rimmer, QUT
Artificial Intelligence and Trade — The Human Problem
Dr Michael Guihot, QUT
Artificial intelligence (AI) will continue to change the way we live — the technology revolution has only just begun. Fuelled by exponential increases in computer power, data storage and interrogation capability, machines can now tirelessly outperform humans on many tasks. When AI is targeted at particular tasks, its processing and predictive power often surprises and confounds us. This evolving reliance on machines threatens to transform not only our private and social lives, but also our political and economic subsistence. For example, early uses of AI in financial services have exposed human components of trade as friction points that can be eliminated. Financial trading services are now more often than not conducted by computers that can interrogate market data and make immediate trades in fractions of a second. In 2017, JP Morgan estimated that traditional human traders made up only around 10% of trading volume.
The new institutional economists in the latter half of the twentieth century sought to reduce transaction costs such as search and information costs, and the costs incurred in policing and enforcement of transactions. AI promises to reduce or eliminate many of these costs. In fact machine learning — artificial intelligence’s brute squad — appears made to star in financial trading. Machines using AI can constantly scan troves of not only market data, but market ‘sentiment’ from news and trade articles, blogs and social media posts to aid in its predictions of market fluctuations to garner information to inform its transaction decisions. At the same time, it learns and improves.
But financial trading is only one example of the transformative nature of AI on trade. AI promises to impact every element: data analytics is used to predict demand and respond immediately using machine to machine communication, real time and cheap translation services remove friction in understanding and communicating between foreign counterparties, warehouses use robots to store and retrieve products on demand, smart contracts threaten to eliminate performance and enforcement issues in contracts and to eliminate ancient means of transacting such as bills of lading, and autonomous shipping and transport threatens to remove human involvement in the physical act of transferring property. Amazon’s Dash buttons are a perfect example of this frictionless trading future.
Vehicles on our roads will become autonomous through five levels. We are currently between levels 2 and 3 at which computers are beginning to monitor the road environment and control the vehicle as it interacts with other vehicles. Level five of this process represents complete vehicle autonomy. At this level humans, whose irrationality and unpredictability is the cause of accidents on roads, will be precluded from interacting with the autonomous functioning of the system. By eliminating humans in this way, roads will become safer and more efficient. Similarly, by eliminating the human element in trade, processes will become more fluent, the friction of transaction costs will dissolve and trade will become more efficient.
Dr Michael Guihot teaches the new unit, Artificial Intelligence, Robots and the Law at QUT and is currently co-authoring a book by that name. He also runs a reading group on Technology, Regulation and Society that investigates the interaction of technology on society and the regulatory implications of this interaction. He is the Deputy Chair of the Australian branch of the Society on Social Implications of Technology, a sub-group of the IEEE. His research investigates the intersection of new technology and law, including the regulation of artificial intelligence, and the impact of new technologies on power and governance. His current research investigates how changes in global power structures affect private and public governance, and the impact of new technology on legal institutions. He has published in international journals on the regulation of artificial intelligence, and also published on manufacturer’s liability under the Competition and Consumer Act 2010 (Cth).
Inauthentic Aboriginal ‘Style’ Art and Craft Products: How can the Law Protect Cultural Expression from Exploitation?
Stephanie Parkin, Masters by Research Candidate, QUT
This presentation will outline research that considers the presence of inauthentic Aboriginal and Torres Strait Islander art and craft products in the souvenir market (Inauthentic Art and Craft). It analyses the causes and impacts of Inauthentic Art and Craft and proposes a regulatory model to address the issue. The research builds upon work carried out over many years by artists and members of the arts and legal industries, in addition to material sourced from the ‘Fake Art Harms Culture’ campaign. This project is being conducted in parallel with the House of Representatives Standing Committee on Indigenous Affairs Parliamentary Inquiry into the same issue (Inquiry), and is informed by submissions filed with the Inquiry by Aboriginal artists and members of the public. This research is significant because it will address the impacts, propose solutions and contribute to the ongoing recognition of Aboriginal cultural expression in Australia. From a legal perspective, the research will challenge interpretations of a ‘representation’ under consumer law in the context of cultural expression. Ultimately, the research aims to improve legal and social recognition in Australia of Aboriginal cultural expression — the foundation of this country’s national identity.
Stephanie is from the Quandamooka People of North Stradbroke Island and has a background practicising in intellectual property law. Stephanie is currently completing a Masters of Philosophy focusing on the manufacture and sale of inauthentic or fake Aboriginal ‘style’ art and craft products in the souvenir market. Stephanie is also on the board of directors for the Indigenous Art Code.
Session 7 — Health (4:15 pm — 5:00 pm)
Chair — Stephanie Parkin, QUT
The Evidentiary Value of the World Health Organization Framework Convention on Tobacco Control in Defending Tobacco Plain Packaging Measures in the WTO Disputes
Sanath Sameera Wijesinghe, Phd Candidate, QUT
This paper evaluates the evidentiary value of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) in defending plain packaging measures under WTO law which eventually sheds light on accommodating the notions of global health and sustainable development in the domain of international trade with particular reference to the Australia-Tobacco Plain Packaging decision. The WHO FCTC creates legally binding obligations on its Parties to adopt systematic, effective and innovative tobacco control measures such as tobacco plain packaging. However, the tobacco companies use WTO agreements to challenge the adoption of such stringent tobacco control measures under the WTO Dispute Settlement mechanism. With these challenges the role of WHO FCTC has been shifted from enabler to a defender of tobacco control measures which gives legal weight to Governments’ arguments on adopting tobacco plain packaging measures. The WHO FCTC has appeared as a strong defence in the Australia-Tobacco Palin Packaging case which strengthening Australia’s arguments as a binding legal instrument and technical and scientific authority. In this backdrop, the WHO FCTC sheds light on accommodating the notions of global health and sustainable development in the domain of international trade and motivates other WHO FCTC parties to adopt tobacco plain packaging measures.
First, this paper investigates the challenges which tobacco trade brings for global health and how is WHO FCTC stimulate its Parties to adopt tobacco control measures to mitigate the impact of such challenges. Second, it examines to what extent WHO FCTC invokes as a defence in the Australia- Tobacco Plain Packaging case in strengthening Australia’s arguments. Third, it discusses the tobacco industry challenges on the defensive role of WHO FCTC and counter-arguments which acknowledged the evidentiary value of the WHO FCTC as a binding legal instrument and technical and scientific authority to justify the adoption of tobacco plain packaging measures. Finally, it analyses the impact of the application of the WHO FCTC as an evidentiary source in the WTO disputes which sheds light on accommodating the notions of global health and sustainable development in the domain of international trade.
Sanath Sameera Wijesinghe, is a lecturer in law at the Department of Legal Studies of the Open University of Sri Lanka. He currently engages in his PhD research at School of Law, Queensland University of Technology. His area of PhD research is plain packaging of tobacco products in the South Asian region. He teaches intellectual property law, constitutional law, land law, business law and jurisprudence in the Open University of Sri Lanka and some other Sri Lankan State universities.
He has written several publications including peer-reviewed journal articles on protection of geographical indications, tobacco control and intellectual property rights, collective management of copyrights and related rights and some aspects on international humanitarian law.
Community-Based Patent Opposition Model in India: Access to Medicines, Right to Health and Sustainable Development
Muhammad Zaheer Abbas, Phd Candidate, QUT
Implementation of the 2030 Sustainability Agenda’s health-related goals requires both robust development and equitable dissemination of innovative health technologies, especially medicines. Keeping in view India’s critical role in the global access to medicines as a leading supplier of cheaper generic medicines, this study considers to what extent India’s patent opposition model achieves its well-defined goals of (a) improving access to essential drugs and (b) protecting a well-established generic drug manufacturing industry in India. In 2005, India adopted distinctively higher substantive patentability standards and linked these bold provisions with the patent opposition procedure to provide an opportunity to third parties to challenge the validity of patents in a time- and cost-effective manner. This study undertakes an in-depth analysis of both the legitimacy and practical viability of this nexus between India’s patent opposition and higher threshold standards for patentability and considers whether this approach improves access to drugs for people who need them.
Using an empirical analysis of 249 patent opposition cases in India, this research evaluates the effectiveness of the Indian patent opposition model. Empirical analysis of patent oppositions in India suggests that the Indian patent opposition model, despite all its merits, has not been used to its full potential. The rate of pre-grant opposition in India from 2005–2015 is low at 2.33%. The Indian opposition model is less likely to enable India to achieve its desired health-related SDGs if used at the current rate. More importantly, the data shows that mainly corporations have used India’s patent opposition mechanism; participation of civil society organizations has been only in exceptional cases (6.4% cases). Lack of participation of the community representatives is a serious concern because corporations are not defenders of the public interest and their decisions to oppose patents are motivated by commercial interests.
This study argues that there is a need to reform the patent opposition system in India in order to enhance community involvement. Learning from Sachs’ enlightened globalization that addresses the needs of the poorest of the poor, India needs to adopt a community-based opposition model which empowers communities to participate in the patent system as representatives of the poorest of the poor. Civil society organizations should be procedurally enabled to not only challenge patent validity on technical grounds but also raise larger public policy issues in terms of access to medicines, public health and sustainable development. Community organizations represent the values advocated by this study. They should be provided an affordable and practically feasible mechanism to bring in these values to administrative hearings.
Though the main focus of this research is on India’s patent opposition model, it also considers use of other patent flexibilities. Despite being a leading developing country, India has not been able to utilize legitimate patent flexibilities like compulsory licensing because of potential negative consequences. This study recommends adoption of compulsory licensing provisions to be primarily used as a meaningful threat or policy leverage to negotiate lower drug prices. But these provisions cannot serve the purpose of a credible threat if they are never invoked to actually issue compulsory licenses. This study advocates community-backed use of compulsory licensing in order to combat the pressures exerted by big players and Big Pharma. If civil society organizations stand with the government and respond to these pressures in a well-organized manner by framing the issue of access to medicines as a human rights issue, even the strongest countries and corporations will have to withdraw pressure.
Even a best use of patent flexibilities does not offer a solution to the problem of neglected tropical diseases which affect 1/6th of worlds’ population. Using Jeffrey D. Sachs’ conception of enlightened globalization and directed technological change, this research evaluates different innovation policy options for India to achieve health-related SDGs and to retain its role as the pharmacy of both the developing and the developed world. It argues that instead of relying upon one mainstream innovation model provided under patent system, India needs to adopt a need-driven open collaborative innovation model that complements the existing patent system, operates parallel to it and addresses some of its key problems. This study supports implementation of open-source drug discovery model and use of prizes, rewards and grants to incentivize directed pharmaceutical research.
Mr Muhammad Zaheer Abbas is a lecturer in law at International Islamic University, Islamabad, Pakistan. He is currently conducting his PhD research at Queensland University of Technology (QUT) as a recipient of QUT Postgraduate Research Award (QUTPRA). He studied Law at International Islamic University, Islamabad and obtained BA General and LLB (Hons) with distinction in 2010. He also obtained LLM in International Law, with distinction, from the same university in 2012.
He has nearly seven years of legal teaching and research experience at university level. He also served as Associate Editor of ‘Islamabad Law Review’, a peer reviewed open access research journal of Faculty of Shariah & Law. He has published 10 research papers, related to intellectual property protection and the public interest, in reputed peer-reviewed journals. His research publications include:
· “WTO Paragraph 6 System for Affordable Access to Medicines: Relief or Regulatory Ritualism”, Journal of World Intellectual Property, 2018;
· “Compulsory licensing and access to medicines: TRIPS amendment allows export to least-developed countries”, Journal of Intellectual Property Law & Practice, 2017;
· “Rationale of Compulsory Licensing of Pharmaceutical Patents in the Light of Human Rights Perspective”, Pakistan Perspectives, 2014;
· “TRIPS Flexibilities: Implementation Gaps between Theory and Practice”, Nordic Journal of Commercial Law, 2013.
In 2014, Mr Abbas got an opportunity to attend the “Winter Institute” held at the College of William & Mary, Virginia, and Georgetown University, Washington D.C. In 2018, he attended the 15th WTO-WIPO Colloquium for Teachers of Intellectual Property held at Geneva, Switzerland. Mr Abbas has been an active legal academic and researcher and has published and presented regularly in his area of teaching and research interest.