The Productivity Commission has released their report on Intellectual Property Arrangements in Australia.
They conclude that copyright protection in Australia suffers from a number of shortcomings. It is overly broad, applying equally to: commercial and non-commercial works; works with very low levels of creative input; works that are no longer being supplied to the market; and works where ownership can no longer be identified. Further, copyright does not target those works where ‘freeriding’ by users would undermine incentives to create new works. As such, Australia’s copyright arrangements are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users.
Copyright protects literary, musical, dramatic and artistic works for the duration of the creator’s life plus 70 years, sound recordings and films for 70 years, television and sound broadcasts for 50 years, and published editions for 25 years. To provide a concrete example, a new work produced in 2016 by a 35 year old author who lives until 85 years of age will be protected until 2136. Evidence (and logic) suggests copyright protection lasts far longer than is needed.
The Australian Government should make clear that it is not an infringement of Australia’s copyright system for consumers to circumvent geoblocking technology and should avoid international obligations that would preclude such practices.
The scope from August 2015 was “The Australian Government wishes to ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services”.
Here are the main findings.
Australia’s intellectual property (IP) arrangements fall short in many ways and improvement is needed across the spectrum of IP rights.
• IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:
− foster creative endeavour and investment in IP that would not otherwise occur
− only provide the incentive needed to induce that additional investment or endeavour
− resist impeding follow–on innovation, competition and access to goods and services.• Australia’s patent system grants exclusivity too readily, allowing a proliferation of low-quality patents, frustrating follow–on innovators and stymieing competition.
− To raise patent quality, the Australian Government should increase the degree of invention required to receive a patent, abolish the failed innovation patent, reconfigure costly extensions of term for pharmaceutical patents, and better structure patent fees.• Copyright is broader in scope and longer in duration than needed — innovative firms, universities and schools, and consumers bear the cost.
− Introducing a system of user rights, including the (well-established) principles–based fair use exception, would go some way to redress this imbalance.• Timely and cost effective access to copyright content is the best way to reduce infringement. The Australian Government should make it easier for users to access legitimate content by:
− clarifying the law on geoblocking
− repealing parallel import restrictions on books. New analysis reveals that Australian readers still pay more than those in the UK for a significant share of books.• Commercial transactions involving IP rights should be subject to competition law. The current exemption under the Competition and Consumer Act is based on outdated views and should be repealed.
• While Australia’s enforcement system works relatively well, reform is needed to improve access, especially for small– and medium–sized enterprises.
− Introducing (and resourcing) a specialist IP list within the Federal Circuit Court (akin to the UK model) would provide a timely and low cost option for resolving IP disputes.• The absence of an overarching objective, policy framework and reform champion has contributed to Australia losing its way on IP policy.
− Better governance arrangements are needed for a more coherent and balanced approach to IP policy development and implementation.• International commitments substantially constrain Australia’s IP policy flexibility.
− The Australian Government should focus its international IP engagement on reducing transaction costs for parties using IP rights in multiple jurisdictions and encouraging more balanced policy arrangements for patents and copyright.
− An overdue review of TRIPS by the WTO would be a helpful first step.• Reform efforts have more often than not succumbed to misinformation and scare campaigns. Steely resolve will be needed to pursue better balanced IP arrangements.
