Competition and IP Policy The USC Gould School of Law Roger Featherston Commissioner, Australian Competition and Consumer Commission November 10, 2017

Australia

ACCC: What we do Consumer protection Competition law False and misleading conduct Mergers and acquisitions Cartels and anti-competitive agreements Unconscionable conduct and unfair terms Misuse of market power Consumer rights to refunds Product safety and recalls   Regulation Market inquiries Telecommunications Dairy Bulk water Gas Monitoring of fuel prices, airports and ports Electricity Mortgage rates Insurance New motor vehicles

Anti-competitive agreements Misuse of market power IP laws confer market power Competition and Consumer Act 2010 prohibits misuse of market power (e.g. Pfizer case) From November 6, 2017, a corporation with substantial power in a market, must not engage in conduct with the purpose or likely effect of substantially lessening competition. Competition law also prohibits agreements that substantially lessen competition (e.g., pharmaceutical pay for delay agreements) Anti-competitive agreements

Data reforms Productivity Commission recently made recommendations on “Data Availability and Use” (Report No. 82, March 31, 2017) Corporations will continue to collect data on consumers  Don't focus on who “owns” data or limiting use of data Should focus on obliging a corporation with data to make it available for use by a consumer, including by transmitting it to a third party at consumer's direction Examples: Retail electricity data Emails and digital photos Automobile servicing data Productivity Commission report page 172: Without a framework in which policy and practice is mutually reinforced in favour of both individual and societal benefit from burgeoning data supply and use, the necessary permission and expectation to dislodge risk aversion in the public sector and desirable confidence in the private sector will remain aspirational. What we need is a data sharing framework that can scale up, evolve and improve in line with technology. Principles and objectives can be set and institutional arrangements funded judiciously to allow for the modern realities of ubiquitous data collection and use, and to manage risk directly rather than by avoidance or transfer of liability to the less informed (generally an individual, acting either as consumer or respondent to governments). The status quo is not addressing opportunity or risk particularly well. This Report recommends a Framework that is designed to manage these tensions in a way that enables the benefits of data use to be achieved while managing the risks of harm that could occur.

The Productivity Commission inquiry into IP Intellectual Property Arrangements , Productivity Commission Inquiry Report No. 78, September 23, 2016

Roger Featherston Commissioner Australian Competition and Consumer Commission