IP and competition
The Ergas Committee
In 1999, the Ergas Committee was created to review the impact of the intellectual property laws on competition has been set up by the Australian Government. The review has been established as a result of the Competition Principles Agreement between the State and Federal governments. The Committee examined the effects of intellectual property legislation, including Patents, Trademarks, Designs, Copyright and Circuit Layouts, to determine whether the intellectual property system is meeting the needs of Australian business and consumers while maximising the benefits of domestic and global competition.
In part, this reference came about because of the effect of government ownership of copyright material on competition policy. This is explicit in the terms of reference, which refer to the Review of Intellectual Property Legislation under the Competition Principles Agreement (the Ergas Committee) recommendation that the government should not be provided with preferential treatment under the Copyright Act 1968.
The Copyright Law Review Committee is aware that competition policy places stress on the policy justifications for government ownership of copyright. In 1992 the Prices Surveillance Authority recommended that Crown copyright in legislation and related materials be abolished. A key reason for this recommendation was that Copyright monopoly rights are not necessary to ensure incentive for adequate development of such information. It is information produced using public money to facilitate government. Such information should be freely available.
In 2000 the Review of Intellectual Property Legislation under the Competition Principles Agreement (the Ergas Committee) noted that given the operation of s 176 of the Copyright Act, the government is in a more favourable position than other contractors or employers as it is not subject to normal contractual negotiations. The Ergas Committee noted that this was inconsistent with the principle of competitive neutrality set out in s 3(1) of the Competition Principles Agreement. The Ergas Committee recommended that the government should not be provided preferential treatment under the Copyright Act compared with other parties, and, accordingly, that s 176 of the Act be amended. The Government's response to this recommendation supported the objective of eliminating unjustified preferential treatment, but opted to develop best practice policy guidelines rather than amend the Act.
Advisory Council on Intellectual Property
In that same year, the The Advisory Council on Intellectual Property (ACIP) also conducted a review on the same subject area. The ACIP is an independent body appointed by the government, and advises the Federal Minister for Industry, Tourism and Resources on intellectual property matters and the strategic administration of IP Australia. The Council was established in 1994. The Council's membership reflects a cross section of industry involved with the intellectual property system, and includes individuals from both large and small businesses, the legal and attorney professions and academia.
