A fresh review of Australia’s intellectual property laws has been cautiously welcomed by observers keen for clarity on how the laws might interact with forthcoming trade agreements.
But observers – including the federal opposition – may be left waiting for that clarity, with the Government unwilling to hold up present trade negotiations, such as the Trans-Pacific Partnership (TPP), while waiting for the results of its review.
Treasurer Joe Hockey announced the review by the Productivity Commission on August 18 – ticking a box on a recommendation from the Harper Review that was finalised earlier this year.
“The inquiry will examine whether Australia has the right balance between promoting competition and protecting intellectual property, while considering our international trade obligations,” Hockey said.
“Our intellectual property arrangements can have effects on investment, competition, trade, innovation, and consumer welfare.
“Our approach to intellectual property is vital to encouraging Australia’s future productivity and economic growth.”
The Productivity Commission will have a year to produce recommendations.
The scope of the inquiry includes looking into the efficacy of IP protections and recommending any changes that “would improve the overall wellbeing of Australian society”.
The Commission is also asked to “have regard to” international agreements and the IP platforms of Australia’s trading partners when making recommendations, but there is no suggestion the review should act as a base position in the ongoing negotiation of trade pacts.
Despite this, academics like QUT Professor of IP & Innovation Law Matthew Rimmer hope the Commission will still take a look at how IP laws might fit with a TPP future.
"The Productivity Commission could explore the complex issues surrounding intellectual property and trade,” Professor Rimmer said.
“There has been much controversy over the Trans-Pacific Partnership in the wake of the broken down Hawaii talks.
"The leaked Intellectual Property Chapter of the Trans-Pacific Partnership proposes longer, stronger intellectual property rights. Such a regime would have a significant impact upon innovation, competition, public health, and access to medicines.”
Professor Rimmer believes the latest review “should be welcomed” given the “fractured and fragmented” nature of Australia’s IP laws.
"The Productivity Commission will help provide some greater clarity and coherence in respect of our intellectual property laws, policies, and practices,” he said.
"The Treasurer should weigh up the costs and benefits of intellectual property reform proposals."
Aside from the TPP, Professor Rimmer also hopes the latest review will take into account recommendations from past reviews that are yet to see formal responses from the Government, describing these reviews as “unfinished business in respect of public policy on intellectual property.”
"The IT Pricing Inquiry into copyright law, consumer rights, and competition law would benefit from a substantive response," he said.
"The Australian Law Reform Commission's recommendations in respect of copyright exceptions, and proposal for a defence of fair use deserve consideration.
"Moreover, the Drug Patents Inquiry made a number of important recommendations in respect of patent term extensions, data exclusivity, and biologics which have not yet been acted upon.”