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Friday, October 9, 2015

Productivity Commission releases IP system review issues paper

By Claire McMahon, Associate

Just when you thought that there could be no more IP-related news this week, the Productivity Commission has gone ahead and released an issues paper ahead of its review into Australia's IP system. This review will cover all areas of IP: patents and data protection, copyright, trade marks, designs, plant breeder's rights, circuit layout rights and geographical indications, as well as IP enforcement and international obligations.

The Commission has invited submissions on the issues and questions outlined in the issues paper. These submissions are due by 30 November 2015. The Commission will then be required to report to the government by mid-August 2016.

This review comes after the release of the Competition Policy Review, also known as the Harper Review. One of the Harper Review recommendations was that the Productivity Commission be tasked with evaluating the existing IP system. This review will be focusing on, among other things:
  • innovation, cost and competition issues arising from the scope and duration of IP protection in Australia, including problems arising from developments in markets and technology;
  • the principles underlining Australia's position on IP provisions in international treaties; and
  • changes to the IP system that would be beneficial to Australian society, keeping in mind its international trade obligations.
Surely many will see the irony in the fact that an issues paper requesting input on Australia's international treaty obligations and the appropriate negotiation principles for such treaties was released two days after the Trans-Pacific Partnership was finally agreed.

In any case, the Commission states its overarching objective as being 'to maximise wellbeing of Australians'. It aims to achieve this goal by ensuring the system is effective, efficient, adaptable and accountable.

Although the purpose of an issues paper is to provide an overview of key issues and set out the policy areas to be considered, this issues paper does give some insight into the thought process behind the review. For example, the issues paper is concerned about striking the right balance between the rights of creators and those of consumers – not surprising given its competition policy origins – which seems to translate to reducing costs for consumers and limiting IP protection where it is not justified. It highlights the balance of rights in the pharmaceutical area as 'particularly contentious', especially regarding patents in relation to new compounds and biologic drugs.

The issues paper also notes the difficulties facing the copyright system, particularly with the development of technology that has not only made infringement easier and cheaper but has highlighted the inflexibility of the existing system.

The Commission states that it will be examining international approaches to IP enforcement, such as the model adopted by the UK Intellectual Property Enterprise Court. It will also seek input on the impact of Australia's international IP obligations on domestic innovation, production, trade and consumption, and what principles should guide future decision making in this area.

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