Importance of Intellectual Property Right Laws in Australia

Introduction:

Of any nation, intellectual property right forms a very important aspect.  An intellectual property right (or IPR) is the property that arises from the creative inputs of the mind or the intellectual.  The individual or the company would be holding rights over certain property created through intellectual competency.  Intellectual property rights are usually not positive rights, but are negative (in the sense that they are meant exclude others from enjoying the labour exercised by the owner).  The owner would be having the right to use his creations in whatever manner.  However, it is also important that the right to exclude other from doing anything with the IP would not mean that competition would be affected in the market.  The IPR is framed in such a way that both the owner and the society benefits from the intellectual labour of the owner.  Any individual who would create a perfect copy of the owner’s creation would be kept out of the competition as it would be deemed as illegal.  If the owner has to be given an IPR, then he should demonstrate that his/her idea is beneficial to the society in some way or the other, and should actually work his/her invention (IP Australia, 2008).

The World Trade Organisation is one of the establishments that promotes international trade by developing and implementing rules especially with relation to IPR.  Australia has constantly developed a very strong interest in science and technology in the past and even today, Australia’s IPR system seem to be very strong in protecting the Intellectual property of the rightful owners both in Australia and from other parts of the world.  Australia has also helped in developing international IPR rules.  It has been found that the Australian IPRs are costing about 30 billion dollars.  Having such a high market value, means that the country needs to altogether develop a strong and effective IPR system, suited for the national and international markets.  IPR laws should be developed and maintained to enforce and handle any infringement issues relating to intellectual labour.  Australia also does import of a lot IPRs through licensing, transfer technology, agreements, and purchase of IPR-protected products (Australian DFAT, 2008).

In any advanced economy, the importance of intellectual labour has been well understood.  A developed country would understand the importance of international commitments and agreements such as the Berne Convention and would reflect it through their IPR rules.  These international commitments are existent to ensure that certain standards are maintained in the IPR laws and that the legal regimes of various countries are in harmony with one another.  Several nations including the developed ones have developed their IPRs from ground zero.   However, throughout the process of developing IPR, strong arguments were present against abandoning certain laws.  In Australia, the development of several intellectual property rights including copyrights have been very gradual and have constantly posed several problems which had to be frequently sorted out (Arnold, B., 2007).

History of Australian IPR

The history of the Australian IPR dates back to the days of the Federation.  The entire IPR history in Australia can be grouped into 5 phases.  In the first phase (which was between 1901 to 1930), the English IP statues were adopted in Australia, often without considering the local matters that could be existent.  This lead to a lot of problems in enforcement and handling infringement issues.  In the second phase (which was between 1935 to 1955), the English IPR laws were modified to a certain extent in order to adapt to the conditions prevailing in Australia.  In the third phase (which was between 1956 to 1984), the policies and the legislation were further made more specific and autonomous for Australian applications.  The 4th phase is the immediate past (between 1984 to 1996), in which the Australian IPR’s were further modified and developed.  The 6th phase is the digital phase in which the digital revolution throughout the world has influenced the IPR laws in Australia (Arnold, B., 2007).

            Some of the legislations that were utilized in the First phase include the Patents Act 1903, the Trade Marks Act 1905 and the Designs Act 1906.  These were nothing but the mere replications with minor modifications of the UK Patents, Trademarks and Designs Acts.  The UK laws were developed in the late 19th Century.  In the year 1905, the Copyright Act was implemented in Australia, and many felt that the Act by itself was inappropriate for Australian Application, because it seemed inconsistent, complex, and had also created a lot of issues when applied in England itself.  In the year 1912, the UK Copyright Act was modified and implemented in Australia.  The main differences that existed in the UK and the Australian copyright laws at that time were that greater amount of importance was given by the Australian Statute to the Berne and Paris Conventions compared to the UK laws.  Slowly, the Australian legislatures become more and more aware of the issues that existed in Australia and slowly seemed to be modifying the IPR laws in order to suit the needs of the region.  From the year 1935 onwards a rule ws followed in Australia, by which any statute that was created in the UK needed to undergo further study, research and modification in order to be implemented in Australia.  The Knowles Committee (1935-39) and Dean Committee (1951-54) were developed as technical deciding bodies who had the tasks of studying UK laws and the modifications required in order to be implemented in Australia.  They led to the critical development and implementation of the Patents Act 1952 and Trade Marks Act 1955.  In the year 1959, a new committee headed by John Spicer was formed who had to critically study the copyright laws of UK and accordingly implement a relevant statute in Australia.  In the year 1968, a copyright statute was developed and implemented in Australia.  This law was very effective in taking Australia forward during the remaining portion of the 20th century.  This Copyright law gave a lot of importance to the Conventions and the Australian relevance.  In 1973, the Franki Committee developed another statute on industrial property which demonstrated greater Australian relevance and further deviations from UK laws.  This began to demonstrate that Australia was now having greater amount of independence in sorting out its own IPR issues.  In the year 1979, a Patents Amendment Act was formed, which was functional between the years 1980 to 1984 in order to lead to the development with the Patents Act of 1990.  Slowly, the economy of Australians was developing and various other legal commitments, international obligations, changing roles and responsibilities, technical developments had to be included.  From the year 1990, the legislation has to work overtime in order to incorporate these issues.  The digital era actually began in the late 1980’s, but it was only in the early 1990’s that the Australian Legislation actually identified issues that could arise relating to digital and technical systems.  They began incorporating protection of such critical issues in the statutes.  In the year 1983, the Copyright law was brought out, enabling major changes in the 1968 Copyright act.  In the year 1987, a Plant Varieties Act was implemented keeping in mind the rights of the Plant breeders.  In the year 1989, a Circuit Layout act was brought out in order to protect integrated circuits.  Efforts were also being made to protect the IPR of the indigenous communities of Australia including the Aboriginals.  In the year 1995, the original Trade mark act of 1955 was repealed and a new trade mark act was developed keeping in mind the changes suggested by the WIPO and TRIPS.  In the year 1994, the satellite broadcaster’s issues were being addressed and major changes were being implemented in the copyright act in order to protect their interests.  Greater amount of digital reforms were brought out in the Copyright act with time.  In the year 2001, The Australian Copyright Amendment (Digital Agenda) Act 2000, became effective which kept in mind the objectives of the older acts and applications for the future digital age.  The Digital Millennium Act of several other countries such as US and Canada were kept in mind whilst creating these laws to protect digital systems and their use.  This suggested that Australia was now not only looking at English laws to develop its own laws, but was rather looking at ideal laws from throughout the world.  In the year 2000, the Copyright Amendment (Moral Rights) Act was effective, in order to protect the moral rights of the authors (Arnold, B., 2007).

Different Types of IPR laws

The term Intellectual property rights include various types of laws including patents, designs, copyrights, trademarks, geographic indications, trade secrets, integrated circuit protection, traditional knowledge, plant breeder’s act, etc.Patent is a time-bound monopoly given for about 20 years during which the owner has the exclusive right over the invention and can exclude others from using the invention.  The three criteria for patents are novelty, non-obviousness and utility.  In Australia there are two types of patent application namely temporary and complete.  Besides, there are also petty patent, innovative patent and patent of addition.

A trademark is a sign that helps people to distuigsh the goods of one manufacturer from another.  A trademark can include letters, words, signature, devices, brand, label, ticket, packaging aspect, color, sent and combinations.

Designs are features of shape, configuration, pattern or ornamentation of an article that is usually judged by the eye (esthetic sense).  It is mainly given to protect the visual appearance of articles.

Plant Breeder’s Right is protection administered to various plant varieties.  They are given for a period of 25 years in the case of trees and vines and 20 years for other types of plants.  In Australia, plant breeder’s right protection and patent protection can be sought at the same time provided the criteria mentioned under each statute can be fulfilled.

Copyrights are protection mainly given for artistic, literary and music works.  In Australia, there is no system for registration of protection under copyright.  The rights automatically flow.  Under literary work, computer software is also included.

Trade secret is a formula, pattern, compilation, program, information, device, technique, etc, that has independent economic value which is known to the owner.  For the efforts incorporated, a certain amount of secretly is to be maintained.

Justifications for Protecting IPR in Australia

            There may be several reasons as to why intellectual property rights need to be protected in Australia:-

It provides an incentive for innovation – Biotechnology is the use of various biological processes for industrial purposes.  In the last few decades, a lot of innovations has occurred been in biotechnology as man has got to know more and more of these natural processes.  Once an innovation is protected, and the rightful owner gets the rewards for his/her creation, he/she would automatically try to produce more and more useful innovations which would be of immense benefit to the public.  In the last 10 years, biotechnology has grown at least 10 folds.  Technological innovation can be applied to various fields including medicine, agriculture, computers, automobiles, etc, and could be harnessed in various sectors.  The Development of IP is critical in this regard.  If the owner is getting the fruits for his/her invention, then he/she would be more and more interested in investing more for research and development (Fitzgerald, 2004 & Spruson & Ferguson, 2001).In the past, Australian investors have not much of an opportunity to commercialize or even policies the inventions.  It has been felt that the Australian IPRs was rather inadequate to protect inventions, and hence it was send out of Australia to be commercialized.  Hence, it is critical for Australia to develop its own IPR.  Having efficient IP rules in place, would ensure that opportunities are not lost for the people who have invested resources in advancing technology (Spruson & Ferguson, 2001).Freedom to operate – Having effective IP laws in place would ensure that the owner is able to work his/her invention and gain maximum from it.  The owner is also motivated to produce more advanced inventions.  There would be a strong completion in the market if effective IP rules are followed (Spruson & Ferguson, 2001).According to John Locke – The creator or the inventor needs to be benefited for his/her invention.  The individual needs to enjoy the fruits of his labor.  The theory proposed by Locke is often known as the ‘value added theory’.  However, studies have shown that it cannot be applied exclusively to all the various types of IP’s (Ramakrishna, 2005).According to Hegel – The personal justification theory or that ‘property is the embodiment of personality’.  When an individual expresses an idea, the idea is a part of the personality itself, and hence has to be protected (Ramakrishna, 2005 & Hughes, 1988).According to Marx – Property was a tool of alienation and could be utilized to divide the poor from the rich.  Property was a portion of ideology, and in society, the intellectual property rights needed to flow into the hands of the employees rather than employers (The History Guide, 2006).IPR can also be considered to be a part and parcel of the natural rights of the individual.  There is a reference to it in the Bible (Galatians 6:7), and also recognized Art27(2) of the Universal Declaration of Human Rights (“everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”) (Fitzgerald, 2004).

Issues related with implementation of IPR in Australia

            However, there may also be certain issues for with relation to IPR laws in Australia.  These include:-

Many people consider that having IPR projection would create a great monopoly in the market and hence restrict any competition that may exist.The owner of the invention or other IPR’s may charge an excessively high amount for his idea.  This can result in the technology becoming unaffordable to the general public.As IPR would be accessible to only some people, there are chances that the poor may not be able to access the new technology.As some of the technology produced cannot be utilized for research purposes for certain duration of time, there are chances that there would be restriction in the further development of science and technology for an excessively long duration of time (a standstill).Many of the developed nations are harnessing the intellectual capacities of those in the poor nations and are not providing them the fruits of their intellectual labor.  This can often be considered to be a mean of exploiting the poor by the rich (as discussed by Marx)It may be very difficult to actually enforce or even establish an IPR.  If an individual has a property, there are greater chances that his idea would be utilized by others without actually giving consideration the owner.  Illegal uses of IPR have been very high in the past.  This is especially seen in third world nations, in which it may be costly to pay the owner for the priority (Gans, 2002, Shapiro, 2006, Lessig, 2007).

Conclusion

            Australia is an economy that is rapidly growing and use of science and technology is shifting over the last few years.  Earlier Australia was concentrating on manual labor, but today the nation is considering its intellectual capacities.  Hence there are greater chances that a conflict would arise in case these intellectual labors are being misused.  Hence, Australia as a nation should try to study the current effectiveness of its IPR laws, recognize any shortcomings in the present laws, and accordingly develop more effective strategies.  Australians innovative capability has been gradually improving over the years, and hence greater coverage under IPR needs to be ensured.  If due to certain arguments (mentioned above), the IPR laws in Australia are scrapped, and then the implications could be severe, preventing further growth and development of technology.  It is also important to consider the moral and social factors prevailing in Australia whilst framing the IPR guidelines regarding rules, enforcement and handling infringement issues (Idris, K, 2004, Jensen, 2006, & Gans, 2007).

References:

Australian Government DFAT (2008), Intellectual property rights [Online], Available: http://www.dfat.gov.au/trade/fs/wto_ip.html, [Accessed: 2008, May 28].

Arnold, B – Caslon Analytics Intellectual Property (2007), Australian law and agencies [Online], Available: http://www.caslon.com.au/ipguide3.htm, [Accessed: 2008, May 28].

Commonwealth of Australia (2008), What is Intellectual Proerpty? [Online], Available: http://www.ipaustralia.gov.au/ip/index.shtml, [Accessed: 2008, May 28].

Fitzgerald, B. and Fitzgerald, A. (2004), Intellectual Property in Principle, pp. 242, Lawbook Company, Pyrmont, NSW.

Gans, J.S., William, P.L. and Briggs, D. – Intellectual Property Rights- A grant of monopoly or an aid to competition. Intellectual Property Research Institute of Australia, Working paper No. 07/02. http://www.ipria.org/publications/workingpapers/2002/ipria%20wp%2007-02.pdf

Gans, J.S., – The Value of IP protection in markets for ideas. Intellectual Property Research Institute of Australia, Occasional Paper No. 1/03.

http://www.ipria.org/publications/Occasional%20Papers/Occasional%20Paper%201.03.pdf

Gans, J and Hayes, R. – Assessing Australia’s Innovative Capacity: 2007 update, Centre Of ideas and Economy, Melbourne Business School, University of Melbourne, Melbourne. http://works.bepress.com/cgi/viewcontent.cgi?article=1015&context=joshuagans

Jensen, P. H., Webster, E. and Buddelmeyer, H. – Innovation, Technological Conditions and New Firm Survival, Intellectual Property Research Institute of Australia, Working Paper No.16/06. http://www.ipria.org/publications/workingpapers/2006/IPRIAWP%2016.06.pdfRamakrishna, T., (2005), Basic principles and Acquisition of Intellectual Property Rights, NLSIU, Bangalore.

Spruson and Ferguson Trade Mark Attorneys (2001), Biotechnology Intellectual Property Manual.

The History Guide (2008), Lecture 24-The Age of Ideologies (2): Reflections on Karl Marx, [Online], Available: http://www.historyguide.org/intellect/lecture24a.html, [Accessed: 2008, May 28].