10 May, 2016
The Productivity Commission (the Commission) released its draft report on Friday last week regarding “Intellectual Property Arrangements”.
A number of major changes were recommended by the Commission in relation to the protections currently afforded by the Australian Copyright Act 1968 (Cth) (the Act), including:
- the current protection for copyright works be reduced from the (usual) 70 years after death of the author, to 15-25 years after creation of the work. The Commission considers the current copyright protection period far exceeds the commercial life of works. However, a requirement introduced by the Australia-United States Free Trade Agreement was to extend Australia’s copyright protection period from life plus 50 years to life plus 70 years. It is unclear therefore whether the copyright protection period in Australia could be decreased. The Commission acknowledges “Australia has no unilateral capacity to alter copyright terms, but can negotiate internationally to lower the copyright term”.
- the Act be amended to make clear that it is not an infringement for consumers to circumvent geoblocking technology. The Commission says geoblocking results in Australians paying higher prices than consumers overseas.
- the Act be amended to replace the current fair dealing exemptions with a broad exception for fair use. This would bring Australian copyright law more in line with that in the US which has a fair use exception. The aim of this is to improve the balance between the rights of copyright holders and accessible use by consumers and intermediate users and ensure that “Australia’s copyright system targets only those circumstances where infringement would undermine the ordinary exploitation of a work at the time of the infringement”. Previous reviews of Australian copyright law have recommended the introduction of a fair use exemption, including the 2013 review by the Australian Law Reform Commission (the ALRC). The Commission recommends an exemption which it says is wider than what had been proposed by the ALRC. The exemption would be open ended and, in assessing whether a use is fair, take into account factors such as:
- the effect of the use on the market for the copyright protected work;
- the amount, substantiality or proportion of the work used, and the extent of transformation;
- the commercial availability of the work; and
- the purpose and character of the use (including whether the use is for commercial or private purposes).
Earlier this year, the Australian Government commissioned Ernst and Young to undertake an economic analysis of the ALRC’s recommendation for the introduction of a fair use exception.
the Australian Government repeal parallel import restrictions (PIRs) for books and this reform take effect no later than the end of 2017. The Commission says that by raising book prices, PIRs adversely affect Australian consumers. The Australian Government’s 2015 Competition Policy Review (the Harper Review) also recommended that PIRs be repealed. The Commission lists reviews over the last 20 years that have considered PIRs and notes that most have recommended their removal.
the Australian Consumer Law (Competition and Consumer Act 2010 (Cth)) (the CCA) be amended so that competition laws apply to intellectual property subject matter. Currently, the CCA exempts certain licensing or assignments of IP from some competition provisions of the CCA. The Commission considers that transactions involving IP rights should be subject to the CCA in the same way as transactions involving other property and assets. The Commission notes that the exemption has survived seven reviews over the last 15 years that have recommended its removal or significant narrowing, the most recent being the Harper Review.
The Commission also recommended changes to patent law, trade marks law and the structure of IP governance in Australia. A copy of the draft report can be accessed via the Productivity Commission website.1 Submissions on the draft report can be made to the Productivity Commission and are due by Friday, 3 June 2016.
Endnotes
Productivity Commission website – Intellectual Property Arrangements – Draft report
For further information, please contact:
Kristin Stammer, Partner, Herbert Smith Freehills
kristin.stammer@hsf.com
