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LSB March 2018_Web

IP REFORM Intellectual

IP REFORM Intellectual Property Arrangements: The Australian Government’s response ALISON BRADSHAW, ALISON BRADSHAW LEGAL In September, 2016, the Australian Productivity Commission handed down its report into Intellectual Property Arrangements in Australia 1 . It was released to the public by the Australian Government in December, 2016. In August 2017, the Australian Government released its response 2 . The response was largely in favour of the principles raised by the Productivity Commission’s report but was clear on the need to consult further on many of those recommendations with which it agreed, in order to implement them effectively. The Productivity Commission’s report covers a range of Intellectual Property regimes which operate in Australia: copyright, trademarks, patents, plant breeders’ rights and designs. These are all statutory regimes founded in international treaty and implemented in domestic law. The international treaties have a role in the ongoing maintenance of the statutory regimes, allowing some scope for amendment and restricting other changes, as do bi- and multi-lateral treaties into which Australia from time to time enters. The Productivity Commission noted that there were a number of amendments it would like to propose but which international treaties would prohibit. 3 It was also a theme in the response, that even if the changes were desired, implementing them would interfere with Australia’s existing trade relationships. 4 This brief summary will only focus on the recommendations for reform of the copyright regime. The first recommendation 5 was to provide that provisions of contracts which purport to limit permitted uses of copyright material be unenforceable. The extension of this, identified in the recommendation, is to permit consumers The response indicates that amendment is necessary and that there will be further consultation to determine the best model for achieving the balance of modern and flexible copyright exceptions. to circumvent technological protection measures for legitimate uses of copyright material. This is necessary to ensure that copyright owners cannot hide behind such measures to prevent consumers accessing copyright material for permitted purposes. The response notes that there is a process for creating exceptions to prohibitions relating to technological protection measures. The exceptions will be reviewed to see if new exceptions can be added to allow for avoiding the technological protection measures for legitimate uses. The next recommendation 6 advocated removing penalties for circumventing geoblocking in some circumstances and to avoid entering into international arrangements which prohibit circumventing geoblocking. Geoblocking is the process of using technology to prevent consumer items being used in certain regions of the world unless purchased there. The practical effect is to prevent Australian consumers from purchasing items legally in other jurisdictions (usually for a significantly lower price) and legally importing them for use. This too has been accepted in the response through the creation of exceptions under existing mechanisms. The response to recommendation 5.3 for the repeal of parallel importation restrictions on books has indicated that removing the restrictions is likely, with the anticipated result of lower cost to consumers. Publishers are concerned that this will impact on the ability for publishers to support Australian content although no one has been able to offer the Productivity Commission convincing evidence of how this will come about. 7 The response also indicated support for a review of the voluntary code of conduct for collecting societies by the Australian Competition and Consumer Commission to ensure that it reflects best practice and to consider whether the code should become mandatory for all collecting societies, in line with recommendation 5.4. There have been many discussions in Australia about “fair use”, which operates in the United States of America and is commonly (but erroneously) thought to operate here. At least part of the debate has been over the format of such an exception, whether to increase the list of existing exceptions or to create an overarching exception, and use the current statutory list (expanded to include some non-contentious additions) as guidance and leave it to the market, through the courts, to determine the boundaries of what is acceptable. The response indicates that amendment is necessary and that there will be further consultation to determine the best model for achieving the balance of modern and flexible copyright exceptions. 8 34 THE BULLETIN March 2018

IP REFORM Another issue which has plagued the international community in recent years has been the challenge of dealing with so-called “orphan works” – copyright material for which the author or creator cannot be found. Where an author is known, they can be approached for rights to access copyright material. Where material is accessed without permission, there is a risk of infringement action at a future date when the author becomes aware of the use. It is not an excuse to say that the author could not be found. To avoid this uncertainty, various jurisdictions have implemented schemes including using collecting societies to authorise use and collect licence fees on behalf of missing authors. If the authors become known, they can then claim back-dated royalties. To formally deal with this issue, the response is to consult with a view to developing a scheme for managing orphan works with greater certainty. 9 Many of these issues have been the subject of discussion and review for some time. It is unclear whether the positive responses to the recommendations are in fact likely to result in legislative change or whether the proposals will become lost in further consultation. B Endnotes 1 Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra 2 Australian Government Response to the Productivity Commission Inquiry into Intellectual Property Arrangements available at https://www. communications.gov.au/departmental-news/ government-response-productivity-commissionsintellectual-property-report 3 At Overview, pp 6,7, Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra 4 See response to recommendations 5.1 and 5.2 of the Australian Government Response to the Productivity Commission Inquiry into Intellectual Property Arrangements 5 Recommendation 5.1, p32, Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra 6 Recommendation 5.2, p32, Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra 7 At Overview, pp11, 12, Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra 8 Response to Recommendation 6.1, Australian Government Response to the Productivity Commission Inquiry into Intellectual Property Arrangements 9 https://www.communications.gov.au/ departmental-news/government-responseproductivity-commissions-intellectual-propertyreport MEMBERS ON THE MOVE MADALENA VELLOTTI DEBORAH HYDE MARTIN LOVELL LYNN PHAM Duncan Basheer Hannon (DBH) is pleased to welcome Family & Migration Lawyer, Madalena Vellotti. Madalena is based at the DBH Morphett Vale Office where she will bring a wealth of knowledge in Family and Migration Law. Madalena has a wide range of expertise in litigation, negotiation and advocacy as well as citizenship matters & visa applications. Madalena also has significant experience dealing with complex legal issues in farming, wineries and fishing industries. Deborah Hyde joins the DBH team as an expert family lawyer who has gained a Masters in Mediation & Conflict Resolution. Her experience is within all aspects of family law including financial agreements, consent orders, child support agreements, dispute resolution, children’s orders, applications and affidavits. Piper Alderman has announced the appointment of Martin Lovell as a partner, effective February 2018, in its corporate and financial services team based in Adelaide. Martin is a projects and finance lawyer who has recently acted on major property and infrastructure developments, grid connected battery projects and project finance transactions. He also has expertise in corporate finance, personal property securities and trusts law. Martin has worked at top-tier firms in London and Melbourne and formerly headed the banking and finance team at a South Australian law firm. Martin is a member of the Financial Services Committee of the Law Council of Australia. He also lectures at Flinders University and is a regular contributor to Thomson Reuters, LexisNexis and other legal publications. Andersons is pleased to announce the appointment of Lynn Pham to its Wills & Estates and Commercial Law teams. Lynn will primarily work out of the Adelaide and Port Adelaide offices. Lynn arrived in Australia as a 14-year-old with an intent to become a lawyer. Her experience of moving to a new country at such an impressionable time in her life, taught Lynn skills around empathy, understanding and communication – all skills she brings to her role as a lawyer. Lynn completed a double degree in Commerce and Law at the University of Adelaide in 2014 and until now has been a general practitioner at a local firm. Lynn also speaks fluent Vietnamese. March 2018 THE BULLETIN 35