School of Regulation and Global Governance (RegNet)

Intellectual Property (IP) in Australia is defined as ‘the property of your mind or proprietary knowledge… it is a productive new idea you create which can be an invention, trade mark, design, brand or even the application of your idea’. The IP Australia website also makes a point to highlight that IP “is a key aspect for economic development”.

It seems only fair that a person, company or government can protect its IP in the midst of international trade negotiations- but what happens when the protection of IP prevents the progress of UN Sustainable Development Goals? Or prevents access to medicines in poorer countries, and lives are lost despite treatment being available?

The ongoing research of Professor Susan Sell from the School of Regulation and Global Governance (RegNet), seeks to highlight the barriers which IP protections may impose upon access to affordable medicines and contributes to the creation of a new IP regime that respects human rights and supports UN development goals.

Susan notes that the link between IP and public health became obvious in the 1990s’ HIV epidemic in sub-Saharan Africa and parts of Asia. The trade issue and IP protections of pharmaceutical company drug patents became a public health issue- sparking the global “Access to Medicines” campaign of which she has now become a globally-recognised academic expert alongside other RegNet pioneers John Braithwaite and Peter Drahos.

Susan has closely followed and participated in the “Access to Medicines” campaign as well as other global and local campaigns aiming to bring down drugs costs for low-income communities in some of the world’s poorest countries. She has become a key expert for several international groups and conferences including the following:

• Regular keynote speaker at the Global Congress on Intellectual Property and the Public Interest (members include academics, practitioners, activists and government employees). Annual conferences rotate globally which result in providing policy recommendations, training and strategy to promote access to medicines.

• 2015-2016 was a Member Expert on the Advisory Group to the UN Secretary General’s High-Level Panel on Access to Medicines. The panel report promoted innovation & access to health technologies (released Sept 14, 2016).

• Forthcoming publication: “Rethinking International Investment Governance: Back to Basics”, led by Columbia University’s Center for Sustainable Investment. Susan was one of 14 International contributors and was the only political scientist. The free publication aims to advise policymakers and practitioners “how to align International investment regime with sustainable development goals” while at the same time, providing training to investment regulators.

Trained as a political scientist, Professor Sell has had an impressive international career led by investigative research into IP and politics behind international trade negotiations. She helped build and currently serves on the Board of the Geneva-based, Intellectual Property Watch (IP-Watch), a reporting service targeted at under-resourced negotiating delegations. Susan notes that her research directly investigates and responds to the recent US decision to deny UN support for breastfeeding, which sparked international uproar by public health policymakers, practitioners and academics. Her research into IP and trade highlights the US decision to instead support manufacturers of formula and further explains why the US bullied other trade partners, Columbia and Ecuador, into also abandoning national support and programs for breastfeeding and affordable medicines.

She also researches and presents on the intellectual property dimensions of Investor-State Dispute Settlement (ISDS) regime which acts as an instrument of public international law via investment and trade treaties.

A prime example of an ISDS would be the Philip Morris vs Australian Government plain packaging case. Philip Morris sued the Australian Government for plain packaging of cigarettes as reducing the expected value of their trademark investment in Australia. In 2016 Australia prevailed in the case, but had spent $39 million defending itself. Sell feels that this outcome and companies’ failures in their IP-related ISDS suits against Uruguay and Canada haven’t and won’t deter actors from protecting IP via the ISDS route. “We will see a lot more IP raised in ISDS cases, because it gives firms a lot of leverage. Public health regulators can’t sue corporations- so it’s not a fair balance.”

More recently the World Trade Organisation ‘s Dispute Settlement Body upheld Australia’s plain packaging of cigarettes in a case brought by Cuba, Honduras, the Dominican Republic and Indonesia. In this case Australia enjoyed the backing of the World Health Organisation. Susan not only shares her research in support of access campaigns and UN public health regulations, she presents to and provides training for IP implications to industry actors as well as public health and access activists. Some examples of her engagement include:

• Regular presenter at the Washington International Trade Association and Institute for International Economic Policy. Attended by strong supporters of IP protection, but Susan finds that some participants are not always aware of how their corporations act/respond to political issues of IP or engage in bullying trade negotiations. In her capacity, she provides counterpoint presentations on the actions/strategies and implications of big Pharmaceutical companies/corporations and the industry trends.

• Invitations by the Pan American Health Organisation, the Instituto Sul-Americano de Governo em Saude (ISAGS) and Union of South American Nations (UNASUR) under the Buenos Aires Ministry of Health, and the Washington International Trade Association have led to Susan’s presentations to public health ministers and medical professionals on IP, trade and health in Guatemala, Argentina and Washington, DC.

More to come

Professor Sell’s research is about to embark further with a new book project funded by the Australian Research Council Books, Drugs, Seeds and Green Technology: the Politics of Access. She will continue to investigate whether IP protection is a barrier for public health access, and if so, if there are technology workarounds or successful campaigns combating this issue. She plans to conduct research and fieldwork in places such as South Africa, Thailand and Brazil looking at patented medicines, germ plasm, seeds and copyrighted educational materials and digital media.

Image by Thomas Breher from Pixabay under Pixabay License