Government lacks enthusiasm for Harper Review IP recommendations

No additional scrutiny of intellectual property provisions in trade agreements

The government will implement in whole or in part 44 of the 56 of the recommendations in the Competition Policy Review, Treasurer Scott Morrison announced today.

However, the government will not support some of the recommendations for reform of Australia's intellectual property regime contained in the review (dubbed the Harper Review after its chair, Profession Ian Harper).

The government announced in August that the Productivity Commission would scrutinise Australia's intellectual property regime, which was one of the recommendations in the IP chapter of the Harper Review.

The government commissioned the PC to examine the impact of Australia's IP laws on research and innovation, access to and cost of goods and services, and competition, trade and investment.

The final report of the Competition Policy Review, which was released in April, also called for increased scrutiny of IP-related provisions in trade agreements.

"A separate independent review [from the PC review] should assess the Australian Government processes for establishing negotiating mandates to incorporate intellectual property provisions in international trade agreements," the Harper Review recommended.

"Trade negotiations should be informed by an independent and transparent analysis of the costs and benefits to Australia of any proposed intellectual property provisions. Such an analysis should be undertaken and published before negotiations are concluded."

The government said it does not support these recommendations.

"The Government already has robust arrangements in place to ensure appropriate levels of transparency of our negotiating mandate while protecting Australia's negotiating position," the response to the review states.

"These include public and stakeholder consultation; feasibility studies and cost benefit analyses; and whole of government agreement to negotiating positions."

"Once a free trade agreement (FTA) is signed, regulation impact statements and national interest analyses are published and the agreement is scrutinised by the Parliament through the Joint Standing Committee on Treaties, prior to ratification," the government's response states.

In addition, a cost benefit analysis of IP provisions in trade agreements "would reflect incomplete or inaccurate outcomes, signal Australia’s position to our negotiating partners and potentially compromise our capacity to achieve Australia’s national interest."

The government noted the Harper Review recommendation that subsection 51(3) of the Competition and Consumer Act 2010 (CCA) be repealed.

The subsection exempts certain conditions of IP licences or assignments from many of the CCA's anti-competitive-conduct provisions.

Repeal of the subsection has previously been supported by the Australian Competition and Consumer Commission, consumer advocates and the parliamentary inquiry into IT pricing.

The government said it would wait on the outcome of the PC's IP review and reconsider its response to the recommendation.

Elsewhere in the review the government said it "remains open" to changes to the Australian Competition and Consumer Commission that could see the organisation's powers to regulate telecommunications access and pricing transferred to a new body.

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