LawFont.com

Rothnie very usefully notes that the Cth has released its draft legislative agenda for the Autumn sittings. On the IP front, it includes a few pieces that I had predicted back when I was crystal ball-gazing in January, plus some other stuff of general interest.

It’s worth noting that none of the IP legislation is marked for introduction and passage in the Autumn sittings (ie, none are ‘starred bills’ on this list). Though, these things can always change… Comments on the particular Bills foreshadowed over the fold.

Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill
– implement outcomes from government copyright law reviews during 2005
– introduce reforms in relation to the jurisdiction and procedures of the Copyright Tribunal and make minor miscellaneous drafting amendments.

I’m assuming that the main ‘reviews’ that this would be talking about are the Copyright Exceptions Inquiry, and possibly, the Review of the scope of exemptions for internet service providers. It also looks like the AG is planning to make good on his proposal, from his speech in November, to bundle dealing with exceptions to the beefing up of enforcement provisions against the genuine ‘pirates’. I wait with baited breath.

Ah, yes, that old chestnut. How very, well, 1990s. But since it has been promised as a ‘coming development’ for, oh, several years now I guess it does need to be got off the agenda. It is, however, beyond my area of expertise, and I’ve not been privy to the drafts that have in the past been passed around so I’ve no comments on its substance. yet.

[This section updated to clarify] This Bill is already before the Parliament. The Bill, EM, and 2nd reading speech can be found at BillsNet here. A Parliamentary Library Research Paper can be found here. Warwick Rothnie has previously explained the relevance of this to IP matters. While the Bill will not give jurisdiction in relation to trade mark or patent, as ACIP had proposed in its report, it would allow the Federal Court generally to refer matters down, and would increase the jurisdiction in relation to trade practices matters. [Update: it is worth perhaps noting that the FMC has already considered at least two cases, one that is a trade mark infringement case (Nickhun Pty Ltd v Grifkam Pty Ltd [2004] FMCA 994), and the other than looks like one (Melbourne’s Cheapest Cars v Melbourne Street Cars [2004] FMCA 606)]

This one’s hard to understand. I’ve tried reading the Government’s response to the IPCRC Report (or, at least, I read it and tried to keep a straight face) – much of the response has either already been done, or looks rather farcical post-FTA (you know, proposals like ‘don’t extend copyright term without full analysis of costs/benefits’, or ‘undertake amendments on databases only after cost/benefit analysis’, ‘welcome Committee’s view that anti-circumvention regime strikes an appropriate balance’). The problem is identifying what is outstanding. It could be:

1. recommendations that the ACCC issue guidelines on what matters it considers to be relevant to the determination of reasonable remuneration and other conditions of licenses that currently can or will be able to be the subject of determination by the Copyright Tribunal under Part VI of the Copyright Act
2. or maybe it’s something to do with s 51(3) TPA and the issue of IP licensing guidelines by the ACCC.

If anyone can enlighten me here, I’d be most pleased! As for the Government’s Response to the ACIP Report on Enforcement of IP rights, this could mean the government is planning to:

1. remove the jurisdiction of state and territory supreme courts to revoke a patent
2. introduce exemplary damages for patent infringement
3. implementing a process to enable seizure of imported goods that infringe patent rights.

Trade Marks Amendment Bill
– amend the Trade Marks Act 1995 to implement a number of changes subsequent to a review of the Act. The changes will clarify uncertainties in the operation of the Act, implement policy changes that have occurred in the last decade since the Act was reviewed and make a number of minor corrections.

Nothing too spectacular here, I don’t think. IP Australia has been conducting a Review of Trade Marks Legislation; that discussion has focused on fairly technical matters. But it could be a good chance to clean up some of the trade marks legislation.

Notice anything missing? According to this schedule, we won’t be seeing the legislation, in this sitting, on the amendments to Australia’s anti-circumvention regime. This is not surprising: the LACA is not due to report until the end of February on exceptions to the anti-circumvention laws, and presumably the government will require some time to digest, and consult on, anything coming out of that committee. We could, of course, still see draft legislation, although the government’s present approach to consultation appears to be to speak to targeted stakeholders on detail (as is occurring in relation to the copyright exceptions review, according to the Attorney-General), rather than making consultations public or transparent.