The Australian Competition and Consumer Commission (ACCC) has called for a “comprehensive and robust” analysis of intellectual property provisions in the Trans-Pacific Partnership before Australia enacts the trade agreement.
In a submission (PDF) to the Productivity Commission’s inquiry into Australia’s intellectual property arrangements, the competition watchdog said it was concerned that the agreement “appears to impose IP restrictions beyond existing international treaties, and this may tilt the balance in favour of IP rights holders to the detriment of competition and consumers”.
Although the ACCC noted government claims that signing up to the TPP will not require changes to Australian IP law, the organisation said an equal or potentially even more important consideration is “to what extent the TPP might impede Australia from making changes to IP settings in the future”.
The 12-nation TPP imposes a range of IP-related obligations on signatories, including anti-piracy rules for the ISP industry.
The ACCC said it was also concerned about investor-state dispute settlement (ISDS) provisions in the TPP.
ISDS clauses give private companies the ability to potentially take legal action against decisions by governments that are parties to particular trade agreements.
(A prominent recent use of an ISDS clause in Australia has been the attempt to roll back legislation that enforced plain packaging for tobacco products.)
The text for the TPP was made public earlier this month.
“In light of the recently concluded TPP negotiations, the ACCC is of the view that it is imperative that Australia introduce reforms that promote competition and stimulate innovation and, where necessary, limit the ambit of IP protections,” the ACCC’s submission argued.
The organisation said that it is concerned that in general Australia’s current copyright protections “may go beyond what is necessary to provide an incentive to create and disseminate original copyright materials, and that they may be providing excessive protections to holders of IP rights”.
Although some copyright rules are locked in by international agreements, “within these constraints the introduction of a flexible fair use copyright exception can go some way towards rebalancing the system towards greater efficient use of copyright,” the ACCC said.
The Australian Law Reform Commission has backed the introduction of ‘fair use’ in Australian copyright law.
The ALRC's 2013 Copyright and the Digital Economy report said that introducing a fair use provision in copyright law would assist innovation and promote the public interest.
Although attorney-general George Brandis has indicated he is in favour of a thorough reform process for Australian copyright law, he does not support the introduction of a general fair use exemption for copyright.
The ACCC also backed the Competition Policy Review (Harper Review) on the need for a cost-benefit analysis of any IP provisions in prospective trade agreements.
The government has indicated it disagreed with the Harper Review’s recommendation.
Patents
The ACCC said it also sees the need for potential reform of Australia’s patent system.“Many patents are filed and not exploited at all or filed speculatively to extract license fees from firms who subsequently market a similar technology,” the submission argues.
“Where thresholds for filing patents are low, there may be an excess of patents with little prospect of being developed into products that are brought to market, imposing inefficient costs on the administration of the system.”
Other recommendations include that all restrictions on parallel imports be lifted and that Section 51(3) of the Competition & Consumer Act 2010 be repealed.
S51(3) exempts certain conditions of IP licences or assignments from many of the CCA's anti-competitive-conduct provisions and the ACCC has previously indicated it supported the section's repeal, as have consumer advocates and the parliamentary inquiry into IT pricing.