Australia’s Productivity Commission (PC) has long been opposed to strengthening Australia’s intellectual property (IP) rules.
Essentially, the PC’s empirical work on IP has found that, as a net importer, Australia would lose more than it gained by granting strong IP rights, whether that involves:
- lengthening the period of the protection;
- broadening the scope of IP rights; and/or
- easing requirements for obtaining IP rights.
Back in September 2016, the PC handed down its review of Australia’s IP system, which called for (among other things) Australia to adopt less prescriptive laws on the fair use of copyrighted material – similar to what exists in the United States – which it argued would benefit both consumers and businesses. The PC also called for the copyright term to be reduced from the current 70 years after creator’s death to 15 to 25 years after creation.
Today, deputy PC chair, Karen Chester, and Google senior copyright counsel and author, Bill Patry, have warned that Australia’s archaic copyright laws are stifling innovation and potentially sending business and jobs offshore. From The AFR:
“We certainly did hear from some of the large data providers – Google and others – that some of their business models that they use offshore would not have been able to be initiated here,” said Ms Chester.
“It’s not just consumers missing out on those products, it’s then the businesses and the jobs that would come when we allow Australian consumers to have that access. We do need to understand as much as possible what we stand to lose if we don’t [adopt fair use].”
The inequities in access to material – for “school kids, less tech savvy older people, TAFES…” – and economic costs “are growing and will continue to do so with technological and digital advances”, Ms Chester warned at an Australian Digital Alliance Forum on Friday…
Mr Patry said restrictive copyright laws were “chilling” investment in innovation. Online video streaming channel YouTube could not have started in Australia, he said, and there was uncertainty over the legality of Google’s own search engine results…
Malcolm Turnbull’s “ideas boom”, and his innovation and science agenda, are clearly being undermined by Australia’s rigid IP laws.
The overarching problem is that successive Coalition Governments have already negotiated away key areas of Australian IP policy in international “free trade” agreements, starting with the 2005 the US-Australia Free Trade Agreement, and more recently the 2015 Trans-Pacific Partnership (TPP), which thankfully will now not be ratified.
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 years, in addition to extending patent protections, which have raised the cost of pharmaceuticals in Australia. The TPP would have augmented these IP extentions, thereby further precluding Australia from undertaking meaningful reform even if it wanted to.
Unfortunately, Coalition Governments have for a long time supported a stronger IP 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 erroneous 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 admitted:
“The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often in its administration, pointlessly bureaucratic.”
Only to then argue that strong intellectual property rights are “central to ensuring” the “ongoing success” of “Australian art, music, literature, film and television”.
If Do-Nothing Malcolm’s “ideas boom” and “innovation economy” is to move from lame slogan to something real, then surely genuine IP reform needs to be taken seriously?
