Australia’s Productivity Commission (PC) has long been opposed to strengthening Australia’s intellectual property rules.
Essentially, the PC’s empirical work on intellectual property has found that, as a net importer, Australians would lose more than it gained by granting stronger intellectual property rights, whether that involves:
- lengthening the period of the protection;
- broadening the scope of intellectual property rights; and/or
- easing requirements for obtaining intellectual property rights.
In the lead up to the final round of negotiations for the Trans-Pacific Partnership (TPP) trade agreement, the PC issued a warning that ceding to US demands to extend intellectual property rights could make Australians worse-off:
The history of IP arrangements being addressed in preferential trade deals is not good. Indeed, to the extent that the return to IP holders awarded by more stringent IP laws outweighed the benefits to the broader economy, the provision would also impose a net cost on both partners, lowering trading and growth potential across the bloc.
Indeed, one of the worst things to come out of the Australia-US FTA was that it extended copyright terms from creator’s life plus 50 years to creator’s life plus 70, in addition to extending patent protections, which raised the cost of pharmaceuticals in Australia.
Unfortunately, Australia’s Governments have for a long time supported a stronger intellectual property system. For example, with regards to the Australia-US FTA, the former Howard Government argued:
The inclusion of the Intellectual Property Chapter recognises the importance of a strong intellectual property regime to economic growth through trade and investment. Australians will benefit through closer harmonisation of our already strong intellectual property regime with that of the largest intellectual property market in the world.
Closer alignment in intellectual property laws and practices will provide Australian exporters with a more familiar and certain legal environment for the export of value-added goods to the US. Likewise, the ability of Australian innovators to attract investment from the US will be enhanced through greater familiarity and confidence of those investors with our legal system.
The essence of which were the assumptions that:
- a stronger intellectual property regime will encourage growth through trade and investment;
- closer alignment of intellectual property rights would increase exports to the US; and
- closer alignment of intellectual property rights would increase US investment in Australia.
For his part, Australia’s current Attorney-General, George Brandis, has argued that strong intellectual property rights are “central to ensuring” the “ongoing success” of “Australian art, music, literature, film and television”.
With these facts in mind, it is good to read today that the PC has been called upon to publicly review Australia’s intellectual property system. From Peter Martin:
Trade Minister Andrew Robb is hostile to the idea of the Productivity Commission anywhere near his trade agreements that contain intellectual property provisions.
Unexpectedly, Joe Hockey has prevailed. On Tuesday the Treasurer asked the commission to examine Australia’s entire intellectual property system and its effect on investment, competition, trade, innovation and consumer welfare.
No one can be certain what it will find. Until now our intellectual property laws have owed more to lobbying than to dispassionate analysis.
The commission is about to be inundated with self-interested submissions from industry telling it that things are just fine as they are. But it is used to such submissions. The inquiry couldn’t be put in better hands.
Well done Joe Hockey. This is great news. At last, one of Australia’s final unexamined monopolies will face public scrutiny. And with it, the role of intellectual property in trade deals, such as the TPP, will be examined once and for all, making it more difficult for governments to sell Australians out in future agreements.
