Speech by SPS Tan Wu Meng at The Seminar on "Navigating IP and Competition Law Issues"

KEYNOTE ADDRESS BY DR TAN WU MENG, SENIOR PARLIAMENTARY SECRETARY, MINISTRY OF FOREIGN AFFAIRS & MINISTRY OF TRADE AND INDUSTRY AT THE SEMINAR ON "NAVIGATING IP AND COMPETITION LAW ISSUES" HELD ON 13 NOVEMBER 2018, 2.10PM AT IP ACADEMY

Distinguished guests, ladies and gentlemen,

A very good afternoon to all of you.

Introduction

 It is my great pleasure to be here with you today.When there is change, it can be challenge, or it can be opportunity. Whether it is the digital economy.  Whether it is new operating models enabled by new technology. Whether you are a business, a consumer, a professional or a regulator. For example, companies such as Netflix and Spotify are challenging traditional models of media and music content provision.

It is also at the frontiers where many of the newest and most interesting issues arise. For example, where intellectual property (or IP), competition, and consumer protection converge. Some of these examples will be touched on further by the speakers and panellists today.

So with ongoing change, and many new frontiers, how do we find opportunity? How should regulators respond? 

Need for Regulators to Collaborate and Work Across Disciplines

Firstly, regulators will need to work more closely than ever, to navigate the convergence of different disciplines, and work across professions to deliver better outcomes for the economy.

The objectives of competition, IP and consumer protection laws are broadly aligned in that they seek to promote innovation, facilitate well-functioning markets and enhance the welfare of consumers and businesses.

For instance, consumer protection laws are aimed at protecting consumers against unfair practices such as conduct and statements that deceive or mislead consumers. Likewise, in determining whether there has been an infringement of a trademark, courts consider whether there is a likelihood of confusion between the products amongst the relevant customer groups, such as consumers. Our panellists will be exploring this issue further in today’s seminar.

However, there could be instances where the abuse of IP rights may have anti-competitive effects which may cause detriment to consumers in the form of fewer choices and higher prices. For example, patent holders may adversely affect competition by unfairly leveraging on their IP rights when they prevent 3rd parties from even licensing such IP, to maintain their dominant positions in the market.

In this regard, I am happy to note that CCCS and the Intellectual Property Office of Singapore (or IPOS) have collaborated on a number of inter-disciplinary projects over the last few years. An example is the study on big data which CCCS undertook in collaboration with IPOS and the Personal Data Protection Commission (or PDPC). The big data study, which was published in August 2017, highlighted CCCS’ key findings on Singapore’s data landscape and explored the implications of the proliferation of data analytics and data sharing on competition law and policy, personal data protection regulation and IP law in Singapore.

I also note that there are other ongoing inter-disciplinary projects which CCCS is undertaking. For example, CCCS launched its inaugural research grant call in April 2018 to promote thought leadership on cross-cutting competition-related issues. The grant was awarded to Associate Professor Eugene Tan Kheng Boon from the Singapore Management University (SMU). His study will examine how international standards could act as a catalyst or barrier to innovative entrepreneurship; and how private or quasi-public regulation affects competition.

I would like to encourage CCCS and regulators alike to continue to collaborate closely with one another to navigate the convergence of different disciplines, and work across professions to deliver better outcomes for the economy.

Need to Maintain Regulatory Agility to Enable Innovation-Driven Economy

Secondly, to enable enterprise growth, regulators also need to keep pace and be agile to adapt to this fast moving digital economy so that our regulatory environment facilitates innovation while protecting consumers.

Collaborations and discussions on emerging areas of law involving businesses, professionals and regulators, such as today’s seminar, are important.

For instance, in responding to emerging frontiers like Artificial Intelligence (or AI), agencies will need to study the impact of AI on current concepts to come up with the appropriate regulatory response in a timely manner. For example, how will we treat AI-generated images or algorithms that provide financial advice to a growing market segment? These issues are by no means straightforward but I am glad to note that regulators are already starting the conversation with one another.

For example, CCCS recently facilitated a dialogue with fellow regulators on AI-related topics through a seminar titled “Towards an Artificial Intelligence Driven Economy”.

Another emerging frontier is the use of Fair, Reasonable and Non-Discriminatory (or FRAND) terms for competition and IP related cases. FRAND terms have been used by regulators around the world to strike the balance between enabling innovation and safeguarding competition and consumers’ interest. CCCS has also applied the use of such terms in accepting commitments for two cases, namely (i) the acquisition by Times Publishing Ltd of the Penguin group of companies and (ii) an investigation where lift manufacturers had refused to supply vital spare parts to third party lift maintenance contractors.

While the use of FRAND terms for standard essential patents is not new in IP cases, the applicability of FRAND terms in other areas to promote competition is still a fairly new area. The speakers will touch more on these recent developments.

The incubation of ideas from today’s seminar will help CCCS consider how FRAND terms can be operationalized for specific cases in the future. This will help CCCS shape the review of its Guidelines on IP Rights and provide greater certainty to businesses on how to balance the sometimes conflicting principles between IP and competition law issues. Today’s discussion will also help to facilitate the implementation of, and reception of FRAND terms amongst businesses.

Conclusion

In conclusion, the emerging interface between consumer protection, and IP and competition laws requires a considered response which balances individual rights with the need to ensure well-functioning and innovative markets. The issues which the panels will be engaging today are difficult but important ones to consider in our fast moving economy, shaped increasingly by digitalization.

Regulators will have to continue to work together closely across disciplines and remain agile to contribute to a vibrant economy with well-functioning and innovative markets.

Thank you and I wish you a fruitful discussion ahead.