Australian Government responds to Productivity Commission’s report on IP arrangements

The Australian Government has recently released its response to the Productivity Commission’s final report on Intellectual Property Arrangements in Australia.

The Intellectual Property Arrangements report by the Productivity Commission covered a range of intellectual property issues, including trade mark, copyright, patent and plant breeder’s rights and made a number of recommendations regarding reforms to Australian intellectual property laws.

The Government has indicated support, or in principle support, for a number of recommendations made by the Productivity Commission and has also indicated that it intends to undertake consultation regarding a number of the Productivity Commission’s recommendations.

In particular, the Government:

  • (fair use) proposes to undertake further consultation in respect of the recommendation regarding the introduction of a broad ‘fair use’ exception the Copyright Act 1968 (Cth);
  • (safe harbour) has stated that it supports, in principle, extending the safe harbour scheme (provisions of the Copyright Act which limit the liability of carriage service providers in certain circumstances) to all providers of all online services rather than just carriage service providers. The Government has also stated that it is currently undertaking further consultation regarding this issue;
  • (contracting out) has stated that it supports, in principle, the recommendation to make unenforceable any contract restricting or preventing a use of copyright that is permitted by a copyright exception;
  • (technological protection measures) has stated that it supports, in principle, the recommendation to amend the Copyright Act to permit consumers to circumvent technological protection measures (TPM) for legitimate use of copyright;
  • (trade marks) has stated that it supports the recommendation that trade marks are only to be given a three year grace period (from the filing date) to use the trade mark before it becomes vulnerable to cancellation for non-use (the current grace period is five years);
  • (trade marks) has stated that it supports, in principle and subject to further research and analysis, the recommendation to require a statement from trade mark applicants or registrants to the effect that they are using or intending to use the mark at application, registration and renewal;
  • (trade marks) has stated that it supports the recommendation to amend the Trade Marks Act 1995 (Cth) in relation to ‘parallel imports’ to clarify the circumstances where genuinely trade marked goods will not infringe an Australian registered trade mark; and
  • (plant breeder’s rights) has stated that it supports the recommendation that the Plant Breeder’s Rights Act 1994 (Cth) be amended to enable essentially derived variety declarations (being varieties which share certain characteristics of a registered plant variety but which are still clearly distinct so as to qualify for plant breeder’s right registration in its own right) to be made in respect of a variety.

In addition to the above recommendations, the Government also indicated support for several amendments to the Patents Act 1990 (Cth), including amendments to the ‘inventive step’ requirement, the abolition of the innovation patent system and reforms to patent filing processes.

The Government has indicated that it intends to undertake consultation over the next 12 months regarding a number of these proposed reforms.


Ben Hamilton

Ben Hamilton

Partner & Technology and Digital Economy Co-Lead

Ben specialises in technology law, intellectual property and commercial contracts, trade marks and commercialisation.

James Deady

James Deady

Partner & Technology and Digital Economy Co-Lead

James is an commercial lawyer specialising in technology procurement, privacy, data security and intellectual property matters.

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