Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Hansard source

I would just make the point that a creative commons is all about intellectual property, the way in which intellectual property is protected and the various means for it. It goes very much to the heart of this legislation that is in front of us, including the fact that this legislation has taken some time to reach us. So I will continue my remarks. There are discussions now on policy considerations, which open up the idea and the notion that there are copyright alternatives altogether. There are a number of creative commons projects under way, including one in the United Kingdom, where those who wish to seek an alternative way of allowing people to use or modify their work—for example, to maximise the exposure of their work to increase distribution or to use innovative business models rather than fully-fledged copyrights to secure a return on their investments—are looking at an alternative to the existing framework. This is very much something that the Attorney-General and the government should be looking to.

In particular, a creative commons offers the opportunity for a set of free public licences which could withstand court scrutiny and where the language is simple enough for nonlawyers and nonparliamentarians to understand but sophisticated enough to be identified by various web applications. In the whole of the copyright debate, those people who are working in the pioneer and path-taking areas of digital art, digital culture and digital business are very interested to see whether the debate and the policy considerations are going to go in this direction. On that basis, I will make this additional comment. If you want to offer the creators of intellectual work a set of copyright licences that, in some senses, are freed from the constrictors of existing legislation but do not impact upon the rights of those people who hold copyright in the work they create then a licence along the lines suggested in the debate on a creative commons would be particularly useful for the government to consider.

The Intellectual Property Laws Amendment Bill 2006 incorporates a number of aspects of intellectual property and implements the government’s response to the Intellectual Property and Competition Review Committee’s report Review of intellectual property legislation under the competition principles agreement and the Advisory Council on Intellectual Property’s Review of enforcement of industrial property rights. The Intellectual Property and Competition Review report, which is commonly known as the Ergas report, focused on Australia’s intellectual property laws. It did that in the light of the competition principles agreement, which forms part of the compendium of National Competition Policy agreements. It is in that context that we are debating and considering the Intellectual Property Laws Amendment Bill.

In April 1995, all Australian governments reached agreement on a national competition policy. That came on the back of the microeconomic reforms that were initiated by the Hawke and Keating Labor governments in the 1980s and the early 1990s. The review of enforcement of industrial property rights recommended that a number of issues, including public education of intellectual property, enforcement issues and legal uncertainty in the field, needed to be addressed. On the question of public education, I have to say that there is a very strong need—an urgent need, in fact—for the government to increase the amount of public education in the area of intellectual property. To be fair, I do not think this area is well understood by the public. However, increasingly as people create and produce work online, in particular, their understanding of copyright will need to be made much more comprehensive, and the government has an important role to play there. The report stated that the main objective is to provide a cost effective patent system that reduces the incidence of infringement and gives greater certainty to patent owners and licensees enforcing their patent rights without damaging the public interest. I think there is absolutely no doubt that that is an important and very necessary public policy goal.

This legislation broadens the springboarding regime for pharmaceutical patents and it clarifies the rights of a prior user in the granting of patents—and that is important and necessary. In addition, because it came on the back of the COAG reforms, it adopts a competition test for the compulsory licensing of patents. It also amends provisions relating to the revocation of trademarks and public access to trademark files. Additionally, it makes minor and technical amendments to the Patents Act.

Labor understands that this is worthy and sensible legislation. Comments have been made in the House that it has been too slow in coming. But, importantly, by giving effect to the government’s response to the Intellectual Property and Competition Review Committee report, there will now be some certainty for those parties who have been waiting for the government to act on this issue.

The bill is divided into 16 schedules. It amends the Patents Act, the Trade Marks Act, the Design Act, the Plant Breeder’s Rights Act and the Olympic Insignia Protection Act. Schedule 1, which revokes registration of trademarks, proposes to amend the Trade Marks Act to allow the Registrar of Trademarks to revoke the registration of a trademark where there has been an administrative oversight or error. There are a number of other schedules of this order that are very much in the manner of tidying up and ensuring more efficacy in the legislation.

Schedule 2—the non-payment of fees relating to trademarks—sets out fee payment requirements and brings the fee payment provisions of the Trade Marks Act into line with those of the Patents Act and the Designs Act. Schedule 3—the registration process for certification of trademarks under the Trade Marks Act 1995—changes the administrative aspects of how applications for certifications are processed and affect the internal workings of the Trademarks Office and the ACCC. There are a number of other schedules of some importance. Schedule 6—the exemption of continued prior use—clarifies the prior use right, which the member for Lowe spoke about previously. To this extent, the clarification is valid only in Australia and extends to the exploitation—that is, the sale—of the product and it can be assigned and not licensed.

Schedule 7—springboarding and patents of the Patents Acts 1990—allows springboarding and its exemption to patent infringement on any pharmaceutical patent at any time but only for purposes in connection with gaining regulatory approval. This is consistent with FTA obligations. The schedule provides that generic medicines can only be exported if the term of the patent has been extended. It is pretty important, given the debate that has surrounded generic medicines, that these forms of clarification under the schedules are included in this bill.

Additionally, schedule 8—compulsory licensing of patents—proposes to include a competition test, whereby a patent may be compulsorily licensed if a person has been found guilty of anticompetitive conduct under part IV of the Trade Practices Act. Schedule 9 clarifies that the claims of an innovation patent define the intention. Schedule 10 proposes that a divisional application from a granted innovation patent may only be made in accordance with the regulations and during the life of the first innovation patent. Schedules 11 and 12 as set out similarly contain measures which would make for more efficacy in relation to this legislation. Schedule 14—approving forms: Plant Breeder’s Rights Act 1994—provides that approved forms under the Plant Breeder’s Rights Act no longer stand as legislative instruments for the purposes of the Legislative Instruments Act as they are essentially of an administrative rather than a legislative nature. I do not propose to speak in any more detail on the strength of these schedules, other than to note that all of them are necessary and to say that they will make this legislation more effective.

On the question of copyright review and copyright reform more generally, I want to draw to the attention of the House that, as this review process has been undergone and reflected in the legislation we have before us, there are additional aspects of the review process, including those that relate to intellectual property, that the government needs to be mindful of. In particular, I note the recommendation in the Intellectual Property and Competition Review Committee’s report that there be an amendment of the Copyright Act to remove special provisions which provide for the government rather than individual creators to be the first owners of copyright material created or first published under its direction or control.

What tends to happen is that the creator of material, where the government itself has been the contracting party, loses their copyright in the material and the government, in effect, takes it. Evidence was given only yesterday, at a hearing of the Standing Committee on Aboriginal and Torres Straight Islander Affairs, of Aboriginal artists, authors and writers who find themselves in this situation, whereby they are in receipt of grants or they are producing material which the government has contracted for them but, as a consequence of producing that material, they lose the capacity for their copyright. That is important in the light of this debate because governments ought to be providing legislation which enables individuals who create work to be able to properly, prudently and legally exploit their work. So their rights in terms of creating work should not be reduced. Their rights should actually be asserted. And that is an important function of what governments do in relation to legislation of this kind.

Additionally, I draw attention to the proposals that the government has afoot about copyright reform—and I think particularly of something like moral rights and communal rights. It may be said that these rights are of a vaguer nature and are not necessarily as easy to legislate for, and I think there is some truth in that. When former Democrats senator, Senator Ridgeway, wanted the parliament and the government to give more attention to the question of communal rights, particularly for Indigenous communities, I must admit the question was raised in my mind as to how easy that would be under the existing legislative framework and in fact under the one that is included essentially in what we are discussing here today in the House.

If we open up our minds in policy terms to what the creation of work is about and how those people who create work can be confident that they have some protection over it, whether it is through a specific legal instrument, such as a bill and copyright, or whether it is through a consideration by the government of additional sorts of rights—either those which might come by way of considering creative commons or essentially expanding on and making a bigger frame, in effect, for moral rights and communal rights to exist—then I think there would be some confidence that we would know the direction in which the government is going in its consideration of issues like patenting, copyright and intellectual property.

The report by the Standing Committee on Science and Innovation, Pathways to technological innovation, examined the need for an effective intellectual property regime in order to encourage innovation. Recommendation 9 stated that:

The Committee recommends that the Australian Government review Intellectual Property legislation according to the National Competition Policy Agreements and establish an Intellectual Property legislation system of periodic re-review.

There is provision in the bill before us for review of some of the schedules that I have identified. But the bigger issue, of reviewing intellectual property and intellectual copyright in the longer term, is a critical one for this government.

Australia hitherto has relied on the very generous provision of natural resources and the natural advantages that we have to exploit those resources, but in the 21st century we will be increasingly required to rely on our innovation and our intellectual resources, and our intellectual resources have become embodied in intellectual property, in the intellectual property of the country and in our capacity to export that intellectual property to other parts of the world. I am particularly keen to see that the government’s digital action agenda plan comes before us, and we know what Senator Coonan has in mind with regard to that policy. I am particularly keen to see that, in our consideration of innovation, we recognise how important intellectual property actually is.

Unless and until we significantly increase the capacity not only to generate intellectual property but also to export it into international trading frameworks and domains, we are going to be the lesser for it. The amounts of money generally involved not only in patents, which are important, but, more importantly, in intellectual property and intellectual property export over time are very large. This is not a small beer economy; this is an economic area which has the potential to earn this country great amounts of foreign income. But at the moment we run trade deficits on cultural goods and in the digital area in terms of digital content. The government needs to harness in a much more vigorous and robust way the intellectual abilities and talents of young Australians and those working in the new areas of the digital economy by not only developing better, more effective and more transparent regulatory frameworks in the copyright and patents domains but by giving consideration to the kind of environment in which intellectual innovation is going to operate in the longer term, in particular whether we ought to consider something as open-ended as open source software. But in this case a creative commons for copyright consideration— (Time expired)

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