Developments by Government Body Archives

Attorney-General's Department
Attorney-General's Department
Copyright Law Review Committee
Intellectual Property and Competition Review Committee
Australian Law Reform Commission

Department of Communications, IT & Arts

Deparment of Education, Science & Training

Department of Foreign Affairs & Trade

Department of Industry, Tourism & Resources
IP Australia
Advisory Council on Intellectual Property

Biotechnology Australia

Human Rights & Equal Opportunity Commission

Parliamentary Committees
House Standing Committee on Legal and Constitutional Affairs
House Standing Committee on Agriculture, Fisheries and Forestry

Commonwealth Government

Attorney-General's Department

1. Copyright Law Review Committee (CLRC)

The CLRC was established in 1983 by the Attorney-General as a specialist advisory board to consider and report to the Australian Government on specific copyright law issues referred to it for consideration.

Government Ownership of Copyright Material
On 4 December 2003 the Attorney-General appointed a new Copyright Law Review Committee and asked it to inquire into the appropriateness of the law relating to government ownership of copyright material.

Under the Copyright Act 1968 (Cth) governments have copyright in various materials, including materials produced by government departments and agencies, and prerogative rights akin to copyright over certain primary legal materials like Acts of Parliament.

In many other countries, governments receive little protection.

The CLRC published an Issues Paper on 12 February 2004 examining the law relating to government ownership of copyright material. Submissions were received until 26 March 2004.

The Issues Paper looks at:
• whether the legislative scheme establishing government ownership of copyright is appropriate;
• whether, as a matter of public policy, the government should own copyright in material produced by the executive, judicial and legislative arms of government; and
• options for reform, legislative or otherwise, and the costs and benefits of those options.

The CLRC published a Discussion Paper for a consultation forum held in Sydney on 27 July 2004 to discuss key matters arising from submissions.

Key issues explored in this paper are:
• public policy considerations for government copyright,
• the scope of material in which the government owns copyright,
• the prerogative right in the nature of copyright,
• sections 176-178 and 35(6) of the Copyright Act 1968 (Cth),
• which entities should be included as part of the 'Commonwealth or State',
• exceptions to infringement, and
• management of Crown copyright.

Update: The CLRC was to report to the Attorney-General by 4 December 2004, but has been granted an extension until 4 March 2005.

Since inviting public submission in February 2004, the Committee has received an unexpected level of interest in the reference, with a total of 77 submissions received from peak copyright industry bodies, the library sector, publishers, Commonwealth and State departments and agencies, professional bodies and private individuals.
For access to the Committee’s Issues Paper, discussion paper for the public consultations and most of the submissions, click here.

Copyright Amendment (Digital Agenda) Act

The Attorney-General’s Department will review key aspects of the Government's Digital Agenda copyright reforms which came into effect in March 2001. The Copyright Amendment (Digital Agenda) Act 2000 (Cth) was designed to update the Copyright Act 1968 (Cth) for the online environment and other new communications technologies. It implemented the most comprehensive reforms to Australian copyright law in more than 30 years. Law firm Phillips Fox has been selected to conduct a major part of the review

Issues papers were released at the beginning of August 2003. Phillips Fox held public fora in Melbourne and Sydney in August and September 2003, and an online forum in September 2003.

Submissions by interested parties were due by 30 September 2003.

Phillips Fox provided their final report to the Government in February 2004. The Government released the report in April 2004.

The report found that the Copyright Amendment (Digital Agenda) Act 2000 (Cth) was achieving its objectives, but that there was still room for improvement or change. The report made twenty recommendations in all.

The report found that the general public had little understanding of copyright law, and the rights and obligations of copyright owners and users. Many copyright owners feared that this ignorance of the law would lead to breaches of copyright. At the same time, copyright owners' own lack of knowledge about enforcement of copyright also meant that they were afraid to use digital technology.

Therefore the report recommended an education campaign to raise public awareness of copyright rights and obligations generally, and those in respect of digital works or technologies in particular, with the campaign to be developed with input from owners’ and users’ interests.

The report found that further empirical data was needed on how the reforms were operating in practice, in particular in relation to the library copying provisions and the education statutory licence provisions.

Phillips Fox conducted their research and analysis independently of the Government. During the term of the consultancy the Government negotiated a Free Trade Agreement with the United States (AUSFTA). The Government signed the AUSFTA on 18 May 2004. In some areas, the copyright provisions of the AUSFTA supersede the recommendations made in the Phillips Fox report.

Where relevant, submissions made to Phillips Fox and the Phillips Fox report have been taken into account in the development of legislation to implement Australia’s obligations under the AUSFTA. Progress on the broader review of the Digital Agenda reforms has been delayed as the implementation of the Agreement has had priority to date.

Following the implementation of the AUSFTA obligations, the Government will conclude its broader review of the Digital Agenda reforms. The broader review will include analysis of the Phillips Fox report in relation to issues that were not considered in the implementation of AUSFTA as well as other Digital Agenda reform issues that were raised during the review.

Copyright and Contract
In April 2001, the CLRC was given a reference by the Attorney-General to look into
the relationship between copyright and contract law. The reference is primarily
concerned with the use of agreements that purport to modify exceptions granted under
the Copyright Act 1968 (Cth). In particular, the Committee investigated the extent to
which such agreements occur in online and offline environments and whether these
agreements are, and should be, valid and enforceable.

In June 2001 the Committee published an Issues Paper and called for written
submissions to be made by 10 August 2001 and received 36 responses. The Committee also prepared a Discussion Paper for a forum with key interests on 4 October 2001.

The Final Report was released to the public on 1 October 2002. The Committee
reported that contractual agreements are being used to exclude or modify the
copyright exceptions and that existing remedies are not adequate. Consequently,
the Committee has concluded that this has caused a displacement of the copyright balance. The Committee's recommendations for change seek to preserve the
integrity of the exceptions which it identified as being fundamental to the copyright
interest in Australia. Key recommendations include:

• that the Copyright Act be amended to provide that an agreement, or provision
  of an agreement, that excludes or modifies the operation of exceptions (namely,
  the fair dealing exceptions, library and archives exceptions, and exceptions
  designed to promote the proper functioning of technology) has no effect;
• that the integrity of the 'permitted purposes' in s 116A(3), (4), (7) of the Act
  be retained by preventing a copyright owner from making it a condition of
  access to his or her copyright material that users will not avail themselves
  of a circumvention device or service for the 'permitted purpose' of doing an
  act that is not an infringement of copyright under ss 47D, 47E, 47F, 48A, 49,
  50, 51A, 183 and Part VB of the Act.
• that the recommendations in the Report should not alter the effect of s 9(3)
  of the Copyright Act insofar as it relates to confidentiality agreements.
• that the government encourage codes of conduct and model licenses for
  dealings with the remaining exceptions of the Copyright Act where relevant.

The Government is due to respond in 2003.

Jurisdiction and Procedures of the Copyright Tribunal
On 20 April 1999, the Attorney-General asked the Committee to inquire into and
report on the need for changes to the jurisdiction and procedures of the Copyright
Tribunal under Part VI of the Copyright Act 1968.

In June 1999, the Committee published an Issues Paper, 'Jurisdiction and Proced-
ures of the Copyright Tribunal', and invited submissions in response. The Committee
produced a Draft Report on its findings and proposed recommendations in February
2000. A Final Report was published in December 2000.

The Final Report's key recommendations were:

• Amend the Copyright Act 1968 so that the jurisdiction of the Tribunal
  applies to collectively administered licences concerning all types of copyright
  material and copyright uses
• Where appropriate, the Tribunal should employ the case management mechanisms of the Federal Court of Australia;
• Collecting societies should adopt alternative dispute resolution mechan-
  isms for resolution of disputes with copyright or potential copyright users as
  well as their disputes with members; and
• Amend the Act so that the Attorney-General may exercise a discretion
  to refer an application for declaration to the Tribunal is she or he thinks it appropriate in the circumstances.

Simplification of the Copyright Act
In 1995, the then Minister for Justice asked the CLRC to advise on simplification
of the Copyright Act 1968 (Cth).

The Committee completed its Report on the simplification of the Act in two parts.
Part 1: Exceptions to the Exclusive Rights of Copyright Owners was published in
September 1998. Part 2: Categorisation of Subject Matter and Exclusive Rights,
and Other Issues was published in February 1999 and includes the Committee's
consolidated recommendations.

In summary, the CLRC recommended that:

• The Government implement a right of distribution as provided in the WCT
  and the WPPT and that this right be exhausted after the first sale (or other
  transfer of ownership) of the original or a copy of the copyright material with
  the authorisation of the copyright owner;
• Multimedia entities be protected in accordance with the principles set out
  in its description of the 'technology-neutral' approach to categorisation of
  exclusive rights and subject-matter;
• Australian copyright legislation be structured so as to implement the following
  principles in relation to protected subject matter:
  • There be two categories of protected subject matter, both encompassing
    all embodiments of material within the literary and artistic domain;
  • Material will be protected at a 'higher level' if it is the result of significant intellectual effort by the person who undertakes its creation; and
  • There be no requirement that subject matter be in any particular, or
    indeed any, form of tangible embodiment for it to be protected.
• There be no requirement that subject matter be in any particular, or indeed
  any, form of tangible embodiment for it to be protected;
• Australian copyright be structured so as to implement the following principles
  in relation to exclusive rights:
  • There be two exclusive economic rights (a right of reproduction and a
    right of dissemination to the public) and two exclusive moral rights (the
    right of attribution and the right of integrity);
  • The two economic rights apply to both categories of protected subject
    matter;
  • The economic and moral rights in material protected at the higher level
    subsist until 50 years after the death of the person who undertakes the material's creation; and
  • The economic rights in material protected at the lower level subsist for
    a period of 50 years from the first dissemination of the material to the
    public.

2. Intellectual Property and Competition Review Committee (IPCRC)

The IPCRC was established by the Attorney-General and the Minister for Industry,
Science and Resources as a result of the Competition Principles Agreement between
the Commonwealth government and the State governments. The agreement requires
that all legislation that has the potential to restrict competition should be subject to
periodic review.

The IPCRC delivered its final report of its 'Review of Intellectual Property
Legislation under the Competition Principles Agreement' on 30 September
2000 (also known as the Ergas Report). The Report incorporates the discussion and recommendations of the earlier 'Report on Parallel Importing under the Copyright
Act 1968'.

The IPCRC examined legislative restrictions on competition in Australia's intellectual
property laws, in accordance with the National Competition Principles Agreement.
The Agreement requires that restrictions on competition should only be retained if
the benefits outweigh the costs to the community as a whole. The proposed legislative
changes to Australia's IP system will make the system more responsive to users'
needs and provide a better balance with competition policy.

The proposed changes to the patent and trade marks systems include raising the
threshold tests for obtaining a patent to international standards, implementing a
grace period to protect a patent application against invalidation by inadvertent or
ill-timed public disclosure, and amending the Trade Marks Act 1995 to remove the
impediment to the parallel importation of legitimately trade marked goods. The
report briefly considered the patenting of business methods. However, the Committee
was not convinced that this area required incentives for innovation and believed no
additional recommendations were needed since most business methods were
expected to fail the general tests for patentability, particularly if such tests were
modified as recommended in the report.

3. Australian Law Reform Commission (ALRC)

Established in 1975, the ALRC is a permanent, independent federal statutory
corporation, operating under the Australian Law Reform Commission Act 1996 (Cth).
The ALRC conducts inquiries into areas of law reform at the request of the Attorney-
General of Australia and provides advice to the government. The focus of the ALRC
is on federal laws and legal processes.

Intellectual Property Rights Over Genetic Materials and Genetic Related Technologies

The ALRC released an Issues Paper—Gene Patenting and Human Health (IP 27)—on 28 July 2003 as the first stage of the inquiry.

The Issues Paper considers whether government funding and purchasing power might be used to contain the cost of medical genetic testing that is subject to patents. The Issues Paper also looks at:

• Possible new defences to claims of infringement of gene patents, such as where patents are used for research, for private non-commercial purposes, or for medical treatment;
• The circumstances in which the Crown use, Commonwealth acquisition or compulsory licensing provisions of the Patents Act 1990 (Cth) may be invoked;
• Constraints imposed by Australia's obligations under international treaties, and the degree to which these constraints may affect our scope for practical reform at the domestic level;
• The potential application in this area of other intellectual property laws (besides patents), such as copyright, trade secrets and design laws; and
• The interplay in this area between patent law and competition (trade practice) laws.

The ALRC released a Discussion Paper - Gene Patenting and Human Health (DP 68) - in March 2004. The paper contains more than 40 proposals for reform.

The Discussion Paper considered ways to:
• establish an express defence of 'experimental use' in the Patents Act 1990 (Cth), to make clear that researchers are entitled to study and experiment upon a patented invention;
• provide rules for the patentability of inventions involving stem cells and stem cell technologies;
• develop policy on the circumstances in which it may be appropriate for the Australian Government to acquire a patent for the purposes of promoting human health under the 'Crown use' provisions of the Patents Act 1990 (Cth);
• develop policy on the circumstances in which the public interest would require the compulsory licensing of a patented genetic invention;
• deal with intellectual property rights in genetic research databases;
• increase the capacity of patent examiners and the courts to scrutinise applications for gene patents;
• ensure patent applications are not overly broad—which can restrict other geneticists from pursuing particular lines of research;
• ensure that publicly funded research, where commercialised, results in appropriate benefits to the community;
• encourage universities and other publicly funded research institutions to raise the awareness of researchers about patenting issues and the commercialisation of research; and
• apply competition law more fully and effectively to business practices involving patented genetic inventions, including through prices surveillance by the Australian Competition and Consumer Commission.

Submissions were due by 16 April 2004

The ALRC's final report - Genes and Ingenuity: Gene Patenting and Human Health (ALRC 99) - was tabled in federal Parliament on 31 August 2004.


The report makes 50 recommendations for reform but it does not suggest any radical overhaul of the patents system.

Some of the main recommendations are set out in summary form below:
• The Patents Act 1990 (Cth) should not be amended to exclude genetic materials or technologies from patentability; or to provide a new medical treatment exclusion; or to expand the existing circumstances in which social and ethical considerations may be taken into account in decisions about granting patents.
• Inventions involving genetic materials and technologies should be assessed according to the same legislative criteria as other inventions. However, gene patents highlighted an issue about the way the ‘usefulness’ of an invention is assessed under Australian law and the ALRC recommended reforms to this area.
• The ‘manner of manufacture’ test in the Patents Act 1990 (Cth) is ambiguous and obscure, and should be reviewed, with a particular focus on the requirement that an invention must not be ‘generally inconvenient’.
• A number of recommendations relate to reforms to assist IP Australia in adapting its current practices to the challenges posed by inventions in new areas of technology such as those involving genetic materials and technologies.
• Research funding bodies should provide guidelines on public benefit and commercialisation of research. Funding bodies should be able, in exceptional cases, to place conditions on funding to encourage wide dissemination of research results.
• The Patents Act 1990 (Cth) should be amended to provide for an experimental use exemption. This exemption should be limited to protecting study or experimentation on the subject matter of a patented invention—that is, research with a focus on discovering more about the invention and its properties.
• Research organisations should continue to raise the awareness of researchers about intellectual property issues to ensure that potentially valuable intellectual property is not lost. Similarly, universities should ensure that students in health sciences or biotechnology are made familiar with intellectual property issues and the commercialisation of research.
• Health departments need to be more active in monitoring the impact of gene patents and licences on the healthcare system. Where particular gene patent applications, patents or patent licensing practices are considered to have an adverse impact on medical research or the cost-effective provision of healthcare, health departments should consider whether to exercise any of the existing legal options to facilitate access to the inventions.
• Education programs about the licensing of inventions that involve genetic materials and technologies should be enhanced.
• The peak biotechnology industry body, AusBiotech Ltd, should develop model licence agreements and consider whether additional industry initiatives are needed to facilitate the licensing of gene patents.
• The Trade Practices Act 1975 (Cth) should be amended to clarify the relationship between Part IV of the Act and intellectual property rights, and the Australian Competition and Consumer Commission (ACCC) should issue guidelines to provide further clarification.
• Policies should be developed about the circumstances in which it is appropriate for government to invoke Crown use for the purposes of promoting human health.
• The Patents Act 1990 (Cth) should be amended to add a competition-based test to the grounds for ordering a compulsory licence.
• The Copyright Act 1968 (Cth) should be amended to clarify the position of commercial research and to facilitate access to databases used in research.

Protection of Human Genetic Information
In February 2001, the federal government asked the ALRC and the Australian
Health Ethics Committee (AHEC) to conduct a joint inquiry into genetic testing and
information. The bodies were asked to consider what sort of regulation may
be needed, in relation to human genetic samples and information, to:

• Protect privacy;
• Provide protection from unfair discrimination; and
• Ensure high ethical standards of conduct.

The joint inquiry considered these primary themes in relation to a number of
contexts in which genetic information may be used including employment; insurance
and superannuation; law enforcement and evidence in court proceedings; health
administration, medical research and practice; management of human tissue banks
and genetic databases; and access to services and entitlements.


The ARLC and AHEC released a Consultation Paper in August 2002 which contains 105 proposals and 40 further questions, together with extensive supporting research and commentary. The deadline for submissions in response was revised to 20 December 2002.

The ALRC and AHEC released a two-volume report in relation to the protection of human genetic information on 29 May 2003. The report, Essentially Yours: The Protection of Human Genetic Information in Australia, makes 144 recommendations with respect to the ethical, legal and social implications of the 'New Genetics'. Key recommendations include:

• The establishment of a standing Human Genetics Commission of Australia (HGCA) to provide technical and strategic advice with respect to current and emerging issues in human genetics and to provide a consultative mechanism for the development of policy statements and guidelines.
• The amendment of discrimination laws to prohibit unlawful discrimination based on a person's actual or perceived genetic status.
• The harmonisation and amendment of privacy laws to address the particular challenges of human genetic information, including extending protection to genetic samples and acknowledging the familial dimension of genetic information.
• Strengthening the ethical oversight of genetic research by ensuring compliance with NHMRC standards; supporting Human Research Ethics Committees; providing more guidance to researchers and research participants about best practice; developing new rules to govern the operation of human genetic research databases; and tightening reporting requirements.
• Employers should not be permitted to collect or use genetic information, except where this is necessary to protect the health and safety of workers or third parties, and the action complies with stringent HGCA standards.
• Requiring the insurance industry to adopt a range of improved consumer protection policies and practices with respect to its use of genetic information (including family history) for underwriting purposes.
• Creation of a new criminal offence to prohibit the submission of another person's sample for genetic testing knowing that this is done without consent or other lawful authority.
• The development of national minimum standards with respect to the collection, use, storage, destruction and matching of DNA samples and profiles for law enforcement purposes. Inter-jurisdictional sharing of information should not be permitted except in accordance with these minimum standards.
• Requiring DNA parentage testing to be conducted only with the consent of each person sampled, or pursuant to a court order. Where a child is unable to make an informed decision, testing should proceed only with the consent of both parents, or a court order.
  

Terms of reference for an ALRC inquiry into intellectual property issues raised by
genetic information were released by the Government on 17 December 2002.
The need for the reference emerged during the joint ALRC/Australian Health Ethics
Committee (AHEC) inquiry regarding the protection of human genetic information,
discussed below.

The ALRC inquiry will consider the impact of current patenting laws and practices
(relating to genes and genetic-related technologies) on:

· the conduct of research and its subsequent application and commercialisation;
· the Australian biotechnology sector; and
· the cost-effective provision of healthcare in Australia.

The inquiry will also consider the effect that the above laws and practices have
on the Australian biotechnology sector and the cost-effective provision of
healthcare in Australia. Pursuant to the terms of reference, the ALRC will consider
and report on any changes which may be required in order to address any
problems identified in current laws and practices.

The Issues Paper considers whether government funding and purchasing power might be used to contain the cost of medical genetic testing that is subject to patents. The Issues Paper also looks at:

• Possible new defences to claims of infringement of gene patents, such as where patents are used for research, for private non-commercial purposes, or for medical treatment;
• The circumstances in which the Crown use, Commonwealth acquisition or compulsory licensing provisions of the Patents Act 1990 (Cth) may be invoked;
• Constraints imposed by Australia's obligations under international treaties, and the degree to which these constraints may affect our scope for practical reform at the domestic level;
• The potential application in this area of other intellectual property laws (besides patents), such as copyright, trade secrets and design laws; and
• The interplay in this area between patent law and competition (trade practice) laws
  
  

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  Department of Communications, IT & Arts
  
  The Department of Communications, IT & Arts (DCITA) provides strategic advice
  and professional support to the Australian Government on a wide range of significant
  and rapidly changing policy areas including:

• Arts and culture
• Broadcasting and online regulation
• Information and communication technology
• IP
• Post
• Sport
• Telecommunication

1. Proposed Resale Royalty Arrangement

A Discussion Paper on a Proposed Resale Royalty Arrangement has been released by Federal Minister for the Arts and Sport, Senator the Hon Rod Kemp.

The paper outlines the history and policy basis of the resale royalty right and puts forward options for the introduction of a resale royalty arrangement in Australia. One option would be to amend the Copyright Act 1968 (Cth) to fully legislate a resale royalty. A private senator's bill, the Resale Royalty Bill 2004, introduced into the Senate on 11 March 2004, seeks to do just that. Click here for further information on the Bill.

A resale royalty, also called a droit de suite, entitles the artist to a royalty payment when a work of art he or she has created is resold. The Government has been examining the issue of resale royalty closely since the release of the Contemporary Visual Arts and Craft Inquiry (Myer) Report in May 2002.

Submissions in response to the paper were received until 13 August 2004.

2. Launch of Digital Content Industry Action Agenda

An Action Agenda for the Digital Content Industry, which is worth an estimated $19 billion to the Australian economy, was launched by Federal Minister for Communications, Information Technology and the Arts, the Hon Daryl Williams MP, at the 10th Australian Interactive Media Industry Association Awards on 6 February 2004.

Action Agendas are designed to help set industry-wide goals. Federal Industry Minister, Ian Macfarlane, approved the Digital Content Action Agenda in recognition of the industry's enthusiasm for the leadership and planning tool. The Action Agenda is intended to build on more than two years of research by the Creative Industries Cluster Study.

Further information is available at the DCITA website.

3. Report of the Contemporary Visual Arts and Craft Inquiry

The DCITA Report of the Contemporary Visual Arts and Craft Inquiry ("the Myer report") was launched on 6 September 2002 by the Federal Government.

A key concept of the report is that Australia should value and foster its visual artists and craft practitioners, and acknowledge and build upon their contribution to Australia's national culture and international standing. The Inquiry recognised that intellectual property issues are of considerable importance to the contemporary visual arts and craft sector and are an important potential source of income for visual artists and craft practitioners.

With respect to intellectual property issues, the Inquiry recommends the Commonwealth Government:

• Introduce a resale royalty arrangement for visual artists and craft workers;
• Establish a working group to analyse the various options;
• Conduct a tender to determine an appropriate body to administer the resale royalty arrangement; and
• Allocate $250,000 for the development of an implementation strategy.

Other recommendations deal with:

• Examining the repeal of the provisions concerning exceptions to infringement of copyright in sculptures and craft works on public display;
• Examining the costs and benefits of providing a guaranteed distribution of income from statutory licences to artists;
• Commencing consultations in relation to a national copyright education campaign;
• Monitoring the practical application and case law developments relating to moral rights;
• The definition of artistic work;
• The Fair dealing exceptions to copyright infringement; and
• Creating an exception allowing artistic works to be reproduced incidentally in film and in TV broadcasts.

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Department of Education, Science and Training

The Department of Education, Science and Training (DEST) supports the Government’s objectives in education, training and science, working jointly with the state and territory governments, industry, other agencies and the general community.

The Department covers the Commonwealth’s contribution to:
• vocational education and training, including New Apprenticeships and training services;
• higher education;
• Indigenous Australian education;
• international education; and
• science policy.

The Department is also responsible for coordinating research policy and promoting collaboration in research and innovation.

1. National Research Infrastructure Strategy

The National Research Infrastructure Strategy Taskforce was set up in July 2003 as an initiative of Backing Australia’s Future, a 10 year plan for Higher Education in Australia, released by the Minister for Education, Science and Training, the Hon Dr Brendan Nelson MP, on 13 May 2003.

The Taskforce will develop a 3-5 year strategy for Government investment in research infrastructure for higher education institutions and publicly funded research agencies, aiming to:

• identify the availability of, and gaps in, research infrastructure in the context of the National Research Priorities, and domestic and international research trends, across all disciplines;
• provide an overview of the likely needs for investment to acquire research infrastructure, sustain its operation, and plan for its operation, including the skills necessary to use and operate it;
• consider how to foster collaborative acquisition, operation and research, including through international collaboration;
• identify opportunities for Australia to host research infrastructure

The Taskforce released a discussion paper in October 2003.

Dr Nelson released the Taskforce's final report on 24 March 2004.

The final report recommended:

• That a National Research Infrastructure Council be established. The Council would develop, implement, review and monitor the National Research Infrastructure Strategic Framework and develop and implement a national process to identify and prioritise research infrastructure needs.
• That the National Research Infrastructure Council be representative of the research community and include representatives of universities, publicly funded research agencies, research funding agencies, governments and industry, and that it may be advised by international peer review.
• That the National Research Infrastructure Council advise government on priorities for current and future research infrastructure funds.
• That a regular national process be established under the auspices of a Strategic Research Council. The process would develop a national strategic research plan, integrating the disparate research strategies and priorities of the Australian Government, regions, institutions, and thematic groups.
• That the Australian Government provide ongoing research infrastructure funding for four categories of infrastructure defined in the Framework: Australian Foundation Facilities; Australian Landmark Facilities; Australian Major Research Facilities; and Australian Research Sector Facilities.

The Government released its response to the report on 7 May 2004.

2. Evaluation of the Knowledge and Innovation Reforms

The Evaluation of the Knowledge and Innovation Reforms is an initiative of Backing Australia’s Future, a 10 year plan for Higher Education in Australia, released by the Minister for Education, Science and Training, the Hon Dr Brendan Nelson MP, on 13 May 2003.

The Evaluation addresses the key issues for reform initiated in the 1999 Knowledge and Innovation: A Policy Statement on Research and Research Training.

The Evaluation provides an assessment of the arrangements by which the government distributes block research funding to Australia’s universities.

It focuses on the operation of the university research funding mechanisms: the Research Training Scheme (RTS), the Institutional Grants Scheme (IGS), and the Research Infrastructure Block Grants Scheme (RIBG).

In examining these schemes, the evaluation assesses the validity of current research performance indicators, and the extent to which they are driving enhanced connections between the university system and the private sector, strengthening the strategic management of research, and improving the quality of research training.

Dr Nelson released the External Reference Group’s consultation report on 24 March 2004.

The Government released its response to the Evaluation on 7 May 2004.

3. Research Collaboration Review

The Review of Closer Collaboration between Universities and Major Publicly Funded Research Agencies is an initiative of Backing Australia’s Future, a 10 year plan for Higher Education in Australia, released by the Minister for Education, Science and Training, the Hon Dr Brendan Nelson MP, on 13 May 2003.

The Review aims to examine the scope for greater collaboration between major Publicly Funded Research Agencies (PFRAs) and Universities, including the extent to which such developments can enhance critical mass, improve research outcomes, achieve more effective use of resources, and strengthen institutional performance.

The Review covers all Australian public universities and four publicly funded research agencies – the CSIRO, the Australian Nuclear Science and Technology Organisation, the Defence Science and Technology Organisation and the Australian Institute of Marine Science.

Dr Nelson established an independent Committee to conduct the Review on 26 May 2003.

An issues paper calling for submissions from interested persons was released on 23 July 2003. The deadline for submissions was 29 August 2003. The Review received submissions from key stakeholders as well as other government and non-government agencies, individuals and academic societies.

The Review found that the current level of collaboration between PFRAs and universities was extensive, particularly at the individual researcher level, but that collaboration could be enhanced at the organisational and higher strategic level. The Review established that no one body existed to provide comprehensive advice to Government with overarching strategic policy assessment, direction, coordination and advice, and that a new body building on the roles of existing advisory bodies and councils could fulfil this function.

The Review found that PFRAs and universities needed to collaborate in a cooperative, as well as a competitive, way. A new externally managed contestable fund could therefore be established, drawing on the benefits of existing funding models, but not duplicating them. In so doing, an expert group could reconsider the National Principles of Intellectual Property Management for Publicly Funded Research to remove any prescriptions which were not in the long term interests of the research sector.

Dr Nelson released the Review’s final report on 24 March 2004.

The Government released its response to the Evaluation on 7 May 2004.

4. Mapping of Australia's Science and Innovation System

In a speech to the Committee for Economic Development of Australia on 20 November 2002, the Prime Minister announced that the Minister for Education, Science and Training, the Hon Dr Brendan Nelson MP, would undertake the major initiative of mapping Australia’s science and innovation activities across the public and private sectors.

The study addresses key elements of the innovation process, including:
• Australia’s capacity to generate ideas and undertake science and related research and development;
• commercial application and utilisation of research and the frameworks which support it;
• development and retention of relevant skills for science, innovation and enterprise.

The study maps how the elements Australia’s science and innovation system interact, and identifies strengths, weaknesses and gaps in science and innovation performance. The study notes areas of possible greater cooperation between Australian Government and State/Territory government activities.

On 28 November 2003 Dr Nelson released the Mapping Australian Science and Innovation report.

More information about the study is available on the DEST website.

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Department of Foreign Affairs & Trade

The Department of Foreign Affairs & Trade (DFAT) is responsible for the protection
and advancement of Australia's international interests through contributions to
international security, national economic and trade performance, and global co-
operation.

1. Australia-United States Free Trade Agreement

On 14 November 2002, it was announced that Australia and the US would commence negotiations to conclude a Free Trade Agreement ("FTA"). As an exception to the Most-Favoured-Nation principle, such agreements are required to eliminate all tariffs and other restrictions on substantially all trade in goods between the parties. Whilte the precise scope of the agrement with be determined during the negotiation process, the FTA is intended to liberalise trade in goods and services, facilitate trade and investment and address government impediments to commercial exchanges. In terms of intellectual property rights, FTAs often contain practical provisions in areas such as harmonisation or mutual recognistion of protection of IP rights. Such provisions do not have to be included in FTAs under WTO rules, but they can play an important role in factilitating trade between the parties and in a broader regional context.

The first round of negotiations was held in Canberra from 17 to 21 March 2003. The Australian Government's objectives for the FTA were set out in a statement issued by the Minister for Trade; these were to:

- Reaffirm the standards established in the WTO TRIPS Agreement and other international intellectual property agreements to which the US and Australia are signatories.

- Seek to ensure that the rights of Australian holders of intellectual property are protected according to international standards in the US, including the right to fair remuneration for use of their works.

- Ensure that Australia remains free to determine the appropriate legal regime for implementing internationally agreed intellectual property standards, maintaining a balance between the holders of intellectual property rights and the interests of users, consumers, communications carriers and distributors, and the education and research sectors.

- Deepen cooperation on intellectual property issues of mutual interest, advancing our common objectives in multilateral intellectual property negotiations; and strengthening cooperation between our respective intellectual property agencies.

- Explore opportunities to work with the US to promote the implementation of effective and appropriate intellectual property systems in the Asia-Pacific region, without limiting the scope of existing activities of this nature.

The second round of negotiations was held from 19-23 May 2003. The chief negotiators noted that they had agreed to a broad working framework for the agreement and that both countries had gained a clearer understanding of each other's systems. Further consultations on intellectual property aspects of the free trade negotiations are likely to be held in late June and early July and the next round of negotiations is scheduled for mid-July.

The third round of negotiations was held from 21-25 July 2003. The negotiating teams put together a composite text capturing the views of both parties on nearly all chapters.

The fourth round of negotiations was held from 27 to 31 October 2003 in Canberra. While a range of matters remain to be resolved, the IP negotiations have achieved some progress narrowing differences.

Click here for full text of a media briefing by the chief negotiators for this round.

The next round of negotiations took place from 1-5 December 2003 in Washington.

Click here for a full statement of Australia's objectives for the FTA. .

Negotiations on the AUSFTA were finalised in February 2004 after 11 months of talks between the two countries. Minister Vaile concluded the agreed text with Mr Zoellick in Washington D.C. on 8 February 2004.

Minister Vaile's press release and fact sheets on a variety of elements of the Agreement, including intellectual property, are available online from DFAT.

The full draft text of the Agreement was released on 4 March 2004.

The Chapter on Intellectual Property (IP) consists of 29 Articles, and 3 Exchanges of Letters: one on ISP Liability; one on various aspects of intellectual property that apply to Australia; and another on national treatment in respect of phonograms.

The subject matter of the IP Chapter covers: copyright and related rights, including encrypted program-carrying satellite signals; trade marks, including geographical indications; domain names; industrial designs; patents; regulated products; and intellectual property enforcement.

While many aspects of the Chapter are drafted to take account of Australia's existing intellectual property regime, some legislative change will be required to implement Australia's obligations. The Government is in the process of assessing exactly what those changes will be. Click here to see DFAT’s guide to the agreement.

The Centre for International Economics (CIE) was selected by DFAT to carry out economic modelling and analytical work in a study assessing the impact of the AUSFTA.

The terms of reference for the study were wide-ranging. Its coverage included: the implications of AUSFTA for output and economic welfare over time; the impact on employment, the States and Territories of Australia and the environment; and rules of origin, government procurement and intellectual property issues.

The CIE’s report was released in April 2004.

The Australian Parliamentary Library released a research paper, Intellectual Property Rights and the Australia-US Free Trade Agreement on 31 May 2004.

The paper examines AUSFTA’s attempts to entrench or enhance Australia’s Intellectual Property Rights (IPRs). General economic arguments are examined in addition to arguments relating to the Australian and US interests in stronger IPRs. Stronger IPRs protect rights holders from competition and so sit awkwardly with the aims of free trade. The paper deals with specific concerns such as the implications of the AUSFTA on the issue of producers using copyright protection measures to practise price discrimination around the world and against the interests of Australian consumers.

On 11 March 2004, the Minister for Trade, the Hon Mark Vaile MP, referred the proposed AUSFTA to the Joint Standing Committee on Treaties for inquiry and report. The Committee tabled a report on 23 June 2004.

In relation to intellectual property, the report made the following recommendations:

• The Government should enshrine in copyright legislation the rights of universities, libraries, educational and research institutions to readily and cost effectively access academic material for academic and related purposes.
• The Copyright Act 1968 (Cth) should be amended to replace the Australian doctrine of fair dealing with a doctrine resembling the United States' fair-use defence;
• The Attorney General’s Department and the Department of Communication, Information Technology and the Arts (DCITA) should review the standard of originality applied to copyrighted material with a view to adopting a higher standard like that of the United States.
• In respect of Technical Protection Measures, the Attorney General’s Department and DCITA should ensure that exceptions will be available to provide for the legitimate use and application of all legally purchased or acquired audio, video and software items on components, equipment and hardware, regardless of the place of acquisition.
• In respect of the changes to the Therapeutic Goods Act 1989 (Cth), and with respect to the valuable input of the innovator companies, care is to be taken to recognise the unique position that generic pharmaceutical companies provide to the Australian community through health programs. Accordingly, it is essential that in drafting the legislation, there should be no mechanism that will cause undue delay of the entry to the market of generic pharmaceuticals.
• The Attorney-General's Department and DCITA should introduce a scheme, consistent with the requirements of the AUSFTA, which allows for copyright owners to engage with Internet Service Providers and subscribers to deal with allegedly infringing copyright material on the Internet. In doing so, they should take note of the issues encountered by the US as outlined in the report; tailor a scheme to the Australian legal and social environment; and monitor the issue of peer to peer file sharing.

Generally, the intellectual property provisions of the Act will commence on the later of 1 January 2005 and the day on which the AUSFTA comes into force. The AUSFTA will come into force 60 days after the parties exchange notifications certifying that they have completed respective necessary internal requirements.

However, some provisions of the Act have different commencement dates. Click here for further information on implementation dates.

Senate Select Committee on the AUSFTA
The Senate Select Committee on the Free Trade Agreement between Australia and the United States of America (AUSFTA) was established in May 2004.

The Select Committee has commissioned a report assessing the economic impact of the AUSFTA. The report, released in June 2004, was prepared by Dr Philippa Dee, ANU. The report comments on the DFAT/CIE modelling assessment of the AUSFTA, and compares the provisions of the AUSFTA with the provisions of other bilateral trade agreements - the Australia-Singapore agreement, the United States-Singapore agreement and the United States-Chile agreement.

The Senate Select Committee tabled its Interim Report on 24 June 2004 and its Final Report on 5 August 2004.

Chapter 3 of the final report deals with intellectual property and comments on Australia's obligations under the AUSFTA. Specifically, it makes comments in relation to copyright term extension, anti-circumvention, internet service provider liability, temporary copying and patents.

Appendix 3 to the report contains a Guide to copyright and patent law changes in the US Free Trade Implementation Bill 2004. The Bill had been introduced to the House of Representatives on 23 June 2004, and was passed by both houses on 13 August 2004.

Click here for further information about the Senate Select Committee's inquiry.

Further information is available from the DFAT website.

Click here to return to current developments page.

2. Australia-China Trade and Economic Framework

On 24 October 2003 Australian Trade Minister, Mark Vaile and Chinese Vice Minister for Commerce, Yu Guangzhou signed the Australia-China Trade and Economic Framework in the presence of Prime Minister Howard and Chinese President Hu Jintao.


Recognising that Intellectual property rights are an important component of business activity, research and development, and that their protection is key to success in higher technology sectors and services, the Parties have agreed to work cooperatively bilaterally, regionally and multilaterally on matters of intellectual property protection.

The Framework includes a commitment to undertake a joint feasibility study into a possible free trade agreement (FTA) between Australia and China.

The study is due to be completed in March 2005.

The APEC Study Centre held a conference in Sydney on 12 and 13 August, at which over 200 business, union, academic and government representatives discussed the prospects and challenges presented by a possible FTA with China.

Copies of papers delivered at the conference are available on the APEC Study Centre website.

3. Malaysia-Australia Free Trade Agreement Scoping Study

At the Australia-Malaysia Joint Trade Committee Meeting on 26 July 2004, Australia's Trade Minister Mr Mark Vaile and his Malaysian counterpart, the Minister for International Trade and Industry, Dato' Seri Rafidah Aziz, agreed that the two countries would "conduct parallel scoping studies of an FTA between Australia and Malaysia".

The studies are to be completed in the first quarter of 2005. They will provide a basis for the Australian and Malaysian Governments to decide whether to negotiate an FTA.

The Australian study will assess the benefits and costs to Australia of an FTA with Malaysia including the potential for improved cooperation in areas such as competition policy and practices and intellectual property.

As part of Australia's study, DFAT has called for public submissions or comment on issues relevant to the possible FTA.

Submissions were due by 15 October 2004.

Click here for further information.

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Department of Industry, Tourism & Resources

1. Development of a National Bioinformatics Strategy

The Department of Industry, Tourism and Resources, in conjunction with other Commonwealth, State and Territory agencies, is currently developing Australia’s National Bioinformatics Strategy.

Bioinformatics is an enabling platform technology integrating biotechnology, computer science, mathematics and information technology to investigate and interpret biological data.

The National Bioinformatics Strategy will address several key themes, including education and training, research and development, infrastructure and commercialisation. It aims to compare Australia with international best practice, identify niche areas for Australian bioinformatics development, and devise national objectives and means of achieving them.

A consultation process sought input from individuals and key community, research and industry groups on the development of the Strategy. It commenced 30 June 2003 and
closed 15 August 2003.

All submissions received during this process are now publicly available.

2. Review of the Disciplinary System for Patent and Trade Mark Attorneys

A review of the disciplinary system for patent and trade mark attorneys has led to recommendations for change from the Professional Standards Board for Patent and Trade Marks Attorneys. The Professional Standards Board has released an Issues Paper and sought submissions and public comments by 31 October 2002.

The Parliamentary Secretary to the Industry Minister, Warren Entsch, issued a report on 26 August 2002 for public comment. The main recommendations of the report are:

• Differentiate between settlement of disputes between client and attorney, and for disciplining an attorney for inappropriate practice;
• Introduce a system for mediation of disputes between client and attorney to allow the client to proceed separately with protecting their intellectual property and lower the costs of dispute resolution; and
• Subject attorney's actions to scrutiny by a specialist disciplinary committee.

Consideration of the Exclusion of Plant and Animal Subject Matter from the Innovation Patent
The Innovation Patent, which became available in May 2001, provides industry
with a relatively inexpensive patent right, which is quick and easy to obtain due
to a lower inventive threshold than that required for a standard patent. Due to
concerns raised over the potential implications of innovation patents to cover
innovations relating to plant and animal subject matter, the government chose
to exclude such subject matter from the legislation.

The Parliamentary Secretary to the Minister for Industry, Tourism and Resources
asked ACIP to examine and assess the implications of the exclusion and
whether it is in the national interest.

ACIP released an Issues Paper in June 2002 and received written comments from interested parties, covering a diverse range of views. ACIP held a round-table discussion with interested parties on 18 June 2003. A summary of the round-table discussions, and overheads used on the day are now available.

The Council is currently considering all materials made available to it and developing a report for the Government.

3. IP Australia

IP Australia is the federal government agency that grants rights in patents, trade
marks and designs and administers the following bodies of legislation:

• Patents Act 1990
• Patents Regulations
• Trade Marks Act 1995 (except Part 13 which the Australian Customs Service administers)
• Designs Act 1906
• Designs Regulations
  

IP Australia incorporates the Patent, Designs and Trade Marks Offices. It is a division
of the Department of Industry, Tourism and Resources but operates independently,
reporting directly to the Minister for Industry, Tourism and Resources

Plant Breeder's Rights Scheme (PBR)

As of 13 December 2004, IP Australia has also responsible for another form of IP- the Plant Breeder's Rights Scheme (PBR). The move, announced as part of the new Government’s Administrative Arrangements Order published on the 27 October 2004, made the Department of Industry, Tourism and Resources (of which IP Australia is a division) responsible for the Plant Breeder’s Rights Act 1994. As a consequence, the Plant Breeder’s Rights Office (PBRO) has been transferred to IP Australia from the Department of Agriculture, Fisheries & Forestry. The Government’s decision to transfer PBR reflects a desire to bring together registered intellectual property (IP) rights into a single organisation to provide a more strategic and coordinated approach to IP policy development in Australia.

Review of Enforcement of Trade Marks
In February 2002, ACIP released an Issues Paper on its 'Review of Enforcement
of Trade Marks'. The paper looks at the creation and protection of rights and offers
the suggestion that Australia, along the lines of the US system, should move towards
a Principal Register for strong marks and a supplement register for weaker ones.

The paper addresses the following issues:

• Reform of the business name system and an education program to
  reduce confusion between trade marks and business names;
• Whether Australia should introduce the Internet Corporation for Assigned
  Names and Numbers' Uniform Domain Name Dispute Resolution Process
  (UDRP) to address cyber-squatting;
• Registration of Plant Breeders' Rights as trade marks;
• Whether geographical indications adversely affect trade mark owners'
  rights;
• Protection of traditional expressions, indigenous people's rights and
  national icons;
• Consistency of examination of trade mark applications;
• The greater difficulties of registering non-word or logo marks;
• The consequences of recent limitations on searching by trade mark
  examiners;
• Reintroducing mandatory disclaimers as promoting use of the current system;
• The ease by which extensions of time in trade mark opposition proce-
  edings are obtained;
• The option of introducing a need to prove use on renewal of registration;
• Parallel importation of branded goods; and
• Reintroducing mandatory 'association' of substantially identical or
  deceptively similar marks.

ACIP also held public seminars in Perth, Sydney and Melbourne in April 2002 to consult with stakeholders on the issues paper. ACIP received a number of written comments regarding the review.

ACIP recently presented its report to the Government. The report was released on 25 May 2004.

The report focuses on the strengthening of trade mark rights to provide more certainty about the validity and scope of rights, with the intention that this will help reduce the need for businesses to take enforcement actions.

The report also examines other aspects of trade mark enforcement, such as the seizure of infringing goods and the interface with other rights, but does not cover the issue of enforcement in the courts. This is the subject of a separate review undertaken by ACIP into the potential extension of the jurisdiction of the Federal Magistrates Service (FMS)

The report makes twelve recommendations, including the following:

• Mandatory disclaimers should be reintroduced and the cross class search list broadened.
• IP Australia should undertake a comprehensive review of its opposition procedures.
• On the issue of control and enforcement of trade mark rights in relation to counterfeit goods, seizure provisions should be strengthened to improve the prospects for trade mark owners to protect their rights.
• To ensure that the penalties for importing counterfeit goods are acting as an appropriate deterrent, a review of the penalties for the relevant offences in the Trade Marks Act 1995 (Cth) should be undertaken.
• Section 198A of the Copyright Act 1968 (Cth), which provides for circumstances in which a trade mark will not be infringed by the importation of copyright material, should be repealed (because a provision like this belongs in the trade marks legislation, rather than in copyright legislation).

The report is also closely linked to ACIP's current review into the interface between trade marks, business names and domain names.

Australia Ranked 12th in International Patent Filings in 2004

According to WIPO figures released in the first week of March, a record number of international Patent Cooperation Treaty filings were lodged in 2004. Of the 120,000+ PCT applications received, 1,804 were from Australia, representing 1.5% of all PCT applications and a 7.1% increase over 2003.

Australia was the 12th biggest user of the PCT system last year, and once again the United States was the largest source of PCT applications. The biggest growth in PCT applications in 2004 came from Japan (+16.6%), the Republic of Korea (+19.3%) and China (+37.8% growth).

For further information, view the press release on the WIPO website.

Consultation - Proposed amendments to the Patents, Trade Marks and Designs Regulations
Schedules 4, 10 and 2A to the Patents, Trade Marks and Designs Regulations, respectively, currently list the Convention countries by name. These Schedules require updating every time a country joins the World Trade Organization (WTO) or accedes to the Paris Convention, which imposes unnecessary costs on government.

In order to remove this need for frequent regulatory change IP Australia has proposed to delete these Schedules and amend the relevant provisions in the Patents, Trade Marks and Designs Regulations. Rather than referring to the list of countries in the relevant Schedule, the new provisions would define the Convention countries by reference to Members of the WTO and countries that are parties to the Paris Convention. Related provisions in the Trade Marks and Designs Regulations dealing with the Bangui treaty, the Benelux Convention, the European Community treaty and the Hague Agreement will not be changed.

A list of Convention countries is available the IP Australia website.
IP Australia is seeking comments on this proposal. Written comments must be submitted by Friday 17 October 2003. Information on how to submit comments is available at the IP Australia website under official notices.

ATMOSS Classification Search
The next version of ATMOSS (Australian Trade Marks Online Search System) is scheduled for release in December 2003. The new version includes improvements to owner name searching and enhancements to navigation.

Click here for further details.

Office Determinations for Classification of Goods and Services in Trade Mark Applications
The ATMOSS Classification Search was updated on 3 September 2003 with improved instructions on the most effective search methods. In addition, the search now includes the Office Determinations which support the Nice Classification of Goods and Services. Use of the Classification Search can reduce potential delays in examination by eliminating the need to deal with matters of classification during the examination process.

Patent Information in the Australian Official Journal of Patents
IP Australia published the first issue of the supplement to the Australian Official Journal of Patents on 12 September 2002. This issue contains information on new filings from
5 July 2002, applications that have been withdrawn, innovation patents that have been granted and applications that have become open for public inspection. This new AOJP supplement will supersede the Innovation Patent Supplement to the AOJP which only contained innovation patent data.

AU Published Patent Data Searching
The data on Australian Patent Abstracts is now available on IP Australia's website as 'AU Published Patent Data Searching'. AU Published Patent Data Searching has the full data collection of Australian Patent Abstracts on CD-ROM including the 1920-74 Classification Data CD. It allows searching on the published bibliographic data fields such as applicant name, IPC marks, inventor name, etc and displays an image of the patent abstract for review. Earlier full patent specifications that are not available in electronic form can be viewed in IP Australia's State Offices or requested from IP Australia. This service will be updated each week from the Weekly Update APA CD.

New Statutory Fees Come Into Effect
IP Australia's statutory fees under the Patents, Trade Marks and Designs Acts came into effect on 1 September 2002. The fees aim to accommodate an electronic business environment and provide some simplification and consistency of the fee schedules.

IP Australia has clarified that the new fees will be applied to renewal and continuation fees in the following manner:

• For a patent to be renewed, the full renewal fee for the anniversary due must be paid.
• For payments made after the anniversary date but within 6 months, the renewal fee includes an additional amount for each month or part thereof that the fee is paid after the anniversary.
  
• If a renewal payment is attempted after the anniversary date, but does not include the additional amount determined by the date of payment, renewal cannot be effected.
• Renewal can only be effected when the full amount due is paid.
  
• If an attempt to pay a renewal fee occurs before 1 September 2002, but was not effective because of an underpayment, the balance due to effect payment after 1 September 2002 is determined by reference to the new fee schedule.

More information about the fee changes can be found on the IP Australia website under the official notices.

4. Advisory Council on Intellectual Property (ACIP)

ACIP was established in 1994 as a non-statutory body under the Minister's authority. Membership includes two ex-officio government members and up to 11 others
whose background and experience reflect the variety of users of the IP system.
The body advises the Minister and IP Australia on matters relating to the strategic administration of IP Australia and on the policy and administration of patents,
trade marks and designs.

Review of Crown use provisions for patents and designs
The Advisory Council on Intellectual Property (ACIP) released a report on Crown use provisions for patents and designs dated November 2005. Currently, when such provisions are invoked, the IP rights holder must be notified and compensated, however the Crown, or any organisation or person authorised by the Crown, has statutory immunity from actions for patent or design infringement. The report examines whether the Crown use provisions continue to reflect the needs of government, business and the Australian public. Owing to the increasing commercialisation of many government services, and with court rulings giving a wide interpretation to the range of entities that can access the provisions, ACIP advises that a more transparent and accountable process for utilising Crown use provisions be introduced.

For the report click here

Public Inquiry on Patents and Experimental Use
There has been increasing concern both in Australia and overseas that patent rights may be inhibiting research and development, particularly in biotechnology. Australian public and private sectors spend a considerable amount on research and development. There has also been concern that there has been insufficient return on this investment through commercialisation of research and development in Australia and that inadequate use of the patent system by researchers may contribute to this.

In response to these concerns, ACIP is conducting a review of patents and experimental use. ACIP will examine whether some types of patents are inhibiting research and development in Australia and determine whether both Australian researchers and business would benefit from introducing an experimental use exception provision (or some other provision) into the Australian patent legislation.

In examining this question, ACIP will consider whether an experimental use exemption would help researchers more effectively use the patent system to commercialise their research and development.

ACIP released its Issues Paper in February 2004. Consultations were held during June 2004 and an options paper was released in December 2004.

Extension of the Jurisdiction of the Federal Magistrates Service to Patent, Trade Mark and Designs Matters
ACIP is currently considering the extension of the jurisdiction of the Federal
Magistrates Service (FMS) to patent, trade mark and designs matters. This review
stems from a call from some sectors of industry for a quicker, more cost
effective mechanism to deal with IP disputes.

The Council has released an Issues Paper and Discussion Paper. The Council received a number of written comments and submissions regarding the review. Round-table consultations have also been held with interested parties.

ACIP recently presented its report to the Government. Federal Industry Parliamentary Secretary, the Hon Warren Entsch MP released the report on 19 February 2004.

The report recommends extending the jurisdiction of the FMS to patent, trade mark and design matters. The report notes the FMS has worked well in other jurisdictions by providing relatively quick and cheap dispute resolution mechanisms and it is expected that these benefits could also apply to IP matters.

The report also recommends changes to streamline current court processes and a more proactive approach by the courts to case manage IP matters. It encourages a greater use of alternate dispute resolution mechanisms by the courts and the early appointment of judges and magistrates with expertise in intellectual property.

Further information is available on the ACIP website.

Consideration of a Position on the Patenting of Business Systems
There have been growing concerns over the impact of business systems patents
on business, innovation and the intellectual property system. In light of the rapid
increase in such patents, Federal Industry Parliamentary Secretary, the Hon Warren Entsch MP, has requested that ACIP examine the issues and, within the constraints of international obligations, propose policy options that best meet Australia's national interest and the needs of stakeholders.

ACIP released an Issues Paper in July 2002 to seek the views of interested parties. ACIP received a number of written comments in late 2002.

ACIP recently presented its report to the Government. The report was released on 25 February 2004.

ACIP consulted with a range of industry and professional groups, and found that despite the concerns, there was little hard evidence of patents for business systems either encouraging or suppressing innovation in Australia.

Making business systems ineligible for patent protection would require fundamental changes to Australian patent law, which could have adverse impacts on the more traditionally accepted patents. Consequently, ACIP recommended that business systems remain patentable for the time being, but that the issue continue to be closely monitored.

ACIP proposed further improvements to the assessment processes used by IP Australia, the federal government agency responsible for patents. ACIP also recommended improvements be made to the information available to the public to better assist the business community in managing this new area of intellectual property.

Further information is available on the ACIP website.

Review of Enforcement of Trade Marks
In February 2002, ACIP released an