Competition policy and IP - Harper Review recommends sweeping reforms

An Intellectual Property (IP) system designed in the best interests of Australians.

This is the goal set by the Competition Policy Review Panel in their Final Report, and they’ve made some firm suggestions on how to achieve it. 

Identifying Australia’s IP regime as a priority for review, the Panel recommends an overarching review of IP to be completed within 18 months. The Panel was concerned that recent reviews into IP had been partial examinations, and recommend a review to focus on:

  • competition policy issues in IP arising from new developments in technology and markets;
  • the principles underpinning the inclusion of IP provisions in international trade agreements.

The Panel also recommended a review into IP negotiation mandates in trade agreements. Future trade agreements should be informed by an independent and transparent analysis of the costs and benefits to Australia of any proposed IP provisions. This analysis should be independent, transparent and be published before the conclusion of negotiations. As Professor Harper noted recently

“Because we don’t necessarily understand what the implications are of various extensions of intellectual property, simply to sign them away in the interest of getting access to markets may be extremely shortsighted,” 

The Panel endorsed a repeated calls for the repeal of s51(3) of the Competition and Consumer Act 2010 (ACC) noting that when the grant of an IP rights causes competition concerns it should be subject to the ACC.

Finally the panel echoed previous recommendations to remove the remaining parallel importation restrictions on books, with a 3 ½ year implementation period.

Overall there are a number of sensible reforms here. And while we would be keen to ensure that routine fixes, such as the TPM review and safe harbour extension are not unnecessarily held up, IP policy shaped through the lens ‘best interests to Australians’ would be a beautiful thing.