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Law Council of Australia


Response to the Draft Report – Australia’s IP Arrangements

The Draft Report raises many issues which are worthy of discussion, and is therefore a useful discussion paper. The IPC is supportive of a number of the recommendations. Some have been the subject of previous detailed review and should be implemented. 

However, whilst holistic, the Draft Report is so broad ranging that, despite its overall length, the treatment of many of the specific topics is necessarily quite superficial. A number of the specific recommendations are not supported by any evidence or are not supported by the level of empirical evidence that the Draft Report itself recommends should be used to inform policy decisions. 

Some of the recommendations descend to very specific detail (such as proposed legislative wording) without any evident consideration of the complete legislative and legal framework and without any empirical evidence about the current position or the effect of the proposal. In some cases the recommendation is contrary to previous expert reviews. There are a number of errors. Some of the recommendations are based on anecdote about the historical position rather than consideration of the current law. 

Although the balance of this submission attempts to deal with some of these issues, a very limited amount of time has been allowed to respond to the Draft Report and it has therefore not been possible to address all of the matters raised by the Draft Report in the time available. To the extent that the Commission has raised an issue or question in the Draft Report which is not addressed below, the IPC is not in a position to provide comments at this stage. 

It is submitted that, as a general approach, where legislative change is recommended (excepting those which have already been the subject of expert review), this should be referred to a body which includes in its composition representatives with appropriate expertise in IP law and policy, and the commercialisation of IP. This body should obtain and consider empirical data in relation to the proposed legislative change. 

To the extent that the Draft Report embodies a high level policy, the policy boils down to this: as a net importer of IP, Australia should confer the minimum IP protection it can justify. A number of general observations can be made about this policy. 

First, a likely long term consequence of this approach will be to encourage other nations to adopt or maintain similar beggar-thy-neighbour policies - with a detrimental effect on global innovation - or lead to increasingly prescriptive treaties and trade agreements as a condition of trade in the goods and services which Australia wishes to export. 

Secondly, the approach subjugates the interests of Australian innovators seeking to protect intellectual property in Australia (and elsewhere), and ignores evidence of the impact of the availability of IP rights in Australia on the decision to conduct research in Australia and on the decision to introduce or use innovations in the Australian market. 


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