At the first sitting of the 44th Australian parliament last month, no member of the executive government had the word “innovation” in his or her title. Whereas previously there had been a Minister for Innovation, Industry, Science and Research, the current government will make do with a Minister for Industry. According to the Prime Minister, short titles were adopted so as to avoid “an extra large business card”. But, does the change reflect a lack of government commitment to innovation in Australia?
The ministerial personnel – Ian Macfarlane as minister, and Bob Baldwin as parliamentary secretary – are familiar with the territory, having held the same positions in the Howard government in 2007. Although appointed some months ago, the Minister has made no public statement about innovation. This gives reason to fear that his interest in innovation disappeared along with the word in his title.
Nevertheless, some IP law reform remains on foot from the previous government’s initiative. The future of Australia’s second-tier patent right, the innovation patent, is under review by the Advisory Council on Intellectual Property (ACIP). The review was commissioned because of concern that an innovation patent, which provides the same rights as a standard patent, is available for advances more minor than intended, thus providing the potential for strategic abuse. An option under consideration is abolition of the innovation patent – but that could hardly assist in encouraging lower-level innovation. Surely the better approach is to retain the innovation patent but reduce the strengths of the rights granted or raise the level of innovative contribution required, or both, so that an incentive for incremental innovation is maintained.
Another current initiative is the Australian Law Reform Commission’s (ALRC) review of copyright and the digital economy. A key proposal of the ALRC is for a general ‘fair use’ defence, to replace the various purposespecific ‘fair dealing’ provisions. As the recent US decision in the Google book digitisation case shows, a fair use defence permits a “transformative” use of copyright material that complements, rather than directly competes with, the original product – the sort of innovation the IP system is meant to encourage.
Thanks to Wikileaks, we now know what is proposed for the IP chapter of the Trans-Pacific Partnership (TTP) agreement being negotiated by Australia, Canada, Japan, NZ, the US and seven other Pacific Basin countries. Upon release of the text, news reports expressed concern that the provisions will lead to higher drug prices and more expensive computer software. The fact is, however, the TPP provisions largely maintain the status quo for developed countries. What is missing in the commentary is an understanding that the exclusive rights provided by patents and copyright are the trade-offs needed to ensure new drugs and software are produced and made available to the Australian public – i.e. that IP rights provide the incentive for innovation.
The first opportunity for the new government to show its colours on IP rights will be in its responses to the ACIP and ALRC reviews. Here’s hoping it understands, and uses, these ‘i’ words.