Government’s response to Productivity Commission’s report on intellectual property

The Australian Government has released its response to the Productivity Commission’s report into intellectual property arrangements in Australia.  The Productivity Commission (Commission) made numerous recommendations, a number of which were major departures from the current arrangements in Australia.  This article discusses these recommendations, the government’s response, and what amendments to intellectual property laws we may expect to see in the near future.

Recommendations relating to copyright

The Productivity Commission’s report made a number of recommendations that were considered ‘radical’ by the government.  These recommendations included the following in relation to copyright:

• a ‘fair use’ exception similar to that used in the United States that would broaden the unremunerated uses of copyright material in Australia;
• expanding the safe harbour provisions to all online service providers;
• making contracts that restrict the use of copyright material unenforceable;
• making the circumvention of geoblocking technology not an infringement of copyright; and
• repealing parallel importation restrictions on books.

In its report in response, the government acknowledged the benefits of some of the recommendations and supported many of them.  The government supported the following recommendations:

• making unenforceable any part of an agreement restricting or preventing a use of copyright material that is permitted by a copyright exception;
• consulting with the book industry to repeal parallel import restrictions; and
• limiting the liability for the use of orphan works.

Recommendations relating to patents

The Commission also made recommendations as they relate to patents in Australia.  It was said that these recommendations were uncontroversial and were generally supported by the government.  These included:

• amending the Patents Act 1990 (Cth) to include an objects clause that describes the purpose of the legislation as enhancing the wellbeing of Australians by promoting technological innovation and the transfer and dissemination of technology;
• amending the test for whether a patent involves an inventive step to bring it in line with international standards such as the European Patent Office;
• new patents will be required to identify the technical features of the invention as set out in the patent application; and
• that the innovation patent system be abolished (but maintaining the rights of existing innovation patent owners).

Recommendations relating to trade marks

The Commission also made recommendations as they relate to trade marks in Australia.  These recommendations were generally supported by the government and included:

• reducing the grace period from five (5) to three (3) years before new registrations can be challenged for non-use; and
• ensuring that parallel imports of marked goods do not infringe Australian registered trade marks.

While the recommendations of the Commission are only, recommendations, the government has shown its support and intention to amend the intellectual property laws in Australia to bring them closer to international standards.  While the supported recommendations will not take effect immediately, expect to see a gradual implementation of these recommendations in future.

Takeaways

It has always been, and still remains, important for intellectual property owners to be aware of their rights and obligations.  With these recommendations shaping the future of intellectual property law in Australia, intellectual property owners need to be aware of how the proposed changes may affect them and their business.

Links and further references

Reports

Australian Government Response to the Commission Inquiry into Intellectual Property Arrangements
Commission Inquiry Report No. 78 – Intellectual Property Arrangements

Legislation

Copyright Act 1968 (Cth)
Patents Act 1990 (Cth)
Trade Marks Act 1995 (Cth)

Further information about intellectual property

If you need assistance in relation to protecting or enforcing your intellectual property rights, please telephone me for an obligation free and confidential discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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