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AustraliaIntellectual Property Arrangements

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About this Inquiry

The inquiry commenced with a request from then Treasurer, Joe Hockey, on 18 August 2015.

The background to the inquiry, set out in this letter, states:

Australia provides statutory protection for intellectual property through patents, trade marks, geographical indications, registered designs, plant breeders' rights, copyright, moral rights, performers' rights and circuit layout rights. Current laws are consistent with treaties under the auspices of the World Trade Organization, the World Intellectual Property Organization and the World Health Organization to which Australia has acceded, as well as bilateral and regional trade agreements.

The global economy and technology are changing and there have been increases in the scope and duration of intellectual property protection. The Australian Government seeks to ensure that the appropriate balance exists between incentives for innovation and investment and the interests of both individuals and businesses, including small businesses, in accessing ideas and products.

Scope of Inquiry

The scope of inquiry is set out in the External linkterms of reference as follows [my emphasis]:

The Australian Government wishes to ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.

In undertaking the inquiry, the Commission should:

1. examine the effect of the scope and duration of protection afforded by Australia's intellectual property system on:

a. research and innovation, including freedom to build on existing innovation

b. access to and cost of goods and services

c. competition, trade and investment.

2. recommend changes to the current system that would improve the overall wellbeing of Australian society, which take account of Australia's international trade obligations, including changes that would:

a. encourage creativity, investment and new innovation by individuals, businesses and through collaboration while not unduly restricting access to technologies and creative works

b. allow access to an increased range of quality and value goods and services

c. provide greater certainty to individuals and businesses as to whether they are likely to infringe the intellectual property rights of others

d. reduce the compliance and administrative costs associated with intellectual property rules.

3. in undertaking the inquiry and proposing changes, the Commission is to have regard to:

a. Australia's international arrangements, including obligations accepted under bilateral, multilateral and regional trade agreements to which Australia is a party

b. the IP arrangements of Australia's top intellectual property trading partners and the experiences of these and other advanced economies in reforming their IP systems to ensure those systems meet the needs of the modern economy

c. the relative contribution of imported and domestically produced intellectual property to the Australian economy, for example to Australia's terms of trade and other economic impacts of IP protection, including on inward investment

d. the Government's desire to retain appropriate incentives for innovation and investment, including innovation that builds on existing work, and production of creative works

e. the economy-wide and distributional consequences of recommendations on changes to the existing intellectual property system, including on trade and competition

f. ensuring the intellectual property system will be efficient, effective and robust through time, in light of economic and technological changes

g. how proposed changes fit with, or may require changes to, other existing regulation or forms of assistance (such as research subsidies) currently providing incentives for the development of intellectual property

h. the findings and recommendations of the Harper Competition Policy Review in the context of the Australian Government's response, including recommendations related to parallel import restrictions in the Copyright Act 1968 and the parallel importation defence under the Trade Marks Act 1995

i. the findings and recommendations of the External linkAdvisory Council on Intellectual Property's Review of the Innovation Patent System the External linkSenate Economics References Committee's inquiry into Australia's innovation system the External linkAustralian Law Reform Commission's Copyright and the Digital Economy report.

 

 

Issues paper

The Issues Paper was released on 7 October 2015

A total of 148 submissions were received before the release of the draft report, including a External linksubmission by the ACCC on 30 November 2015

 

Draft Report

The draft report was released on 29 April 2016.

The Report was consistent with the recommendations made by the Harper Panel in relation to IP.

In particular, it recommends removal of parallel import restrictions on books by no later than the end of 2017 (draft recommendation 5.2).

It further recommends that the Government make clear that it is not an infringement of the Copyright Act for consumers to circumvent geoblocking technology (draft recommendation 5.1)

The Draft Report also acknowledges that a 'well-functioning IP system must take account of the longer run effects on competition that exclusivity of ideas can create' (p 386).

The Report considers current competition law exemptions relating to licensing or assignment of IP property and exemptions form the National Access Regime. In relation to the former it recommends repeal of the s 51(3) exemption and that the ACCC issue guidance on the application of the competition law provisions of the CCA to intellectual property (draft rec 14.1).

In relation to access, the PC does not reach a concluded view, but requests further information (p 399)

 

Final Report

The Final Report is expected in August 2016.

 

Submissions

A total of 148 submissions were received before the release of the draft report, including a External linksubmission by the ACCC on 30 November 2015.

Submissions on the Draft Report are due by 3 June 2016

 

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