Previous infojustice posts about the Australian Government’s Productivity Commission’s Draft Report on Intellectual Property Arrangements have focused on its recommendation that Australia adopt fair use in its copyright law (here and here). This post highlights the findings regarding the extension of terms for pharmaceutical patents. Australia’s law, in effect since 1999, grants extensions to pharmaceutical firms to make up for time during which the patented drug is awaiting marketing approval. Total patent term may be extended up to a total of 25 years.
[Cross posted from Medium] Published by the Australian Government on the 20th March 2014, the independent “Pharmaceutical Patents Review Report” recommends to shorten and reduce patent term extensions, to address the problems of evergreening and data protection, and to reverse Australia’s passive approach to the negotiation of intellectual property and international trade. The report emphasizes the need for Australia to protect its public health interests in the negotiation of the “Trans-Pacific Partnership.”
This week, the secrecy surrounding an independent Australian report on patent law and pharmaceutical drugs has been lifted, and the work has been published to great acclaim.
Excerpt from Competition Policy Review, Draft Report, September 2014, published under a CC-BY license. The review is being conducted by a panel chaired by Professor Ian Harper. It is accepting comments until November 17, and will issue a final report by March 15. The full draft report (and instructions for comments) is available here. The excerpt below is from pages 87-88.
For individual countries, the optimal design and level of IP rights depends on the extent to which they are net importers or exporters of different forms of IP. Australia is a net importer of IP. With trade and commerce-related aspects of IP crossing national borders, IP has been the subject of international treaties. Frameworks influencing Australian IP law and trade and commerce in IP both within Australia and internationally, include:
Professor Henry Ergas and Professor Allan Fels
A Submission to the Online Copyright Infringement Discussion Paper
Click here for the full submission
Authors’ summary of Key Points:
The changes proposed in the government’s recent discussion paper on “Online Copyright Infringement” have the potential to impose costs that greatly exceed their benefits.
By extending authorisation liability, the proposals will place on ISPs and on a broad range of other entities, including cloud service providers, schools and libraries, risks they are poorly placed to manage. This inefficient allocation of risk will increase costs for end-users and chill innovation.
[Australian Digital Alliance, Link (CC-BY)] It has been a big week for Australian Copyright. On Thursday the Attorney-General, the Hon George Brandis QC, tabled the long-anticipated final report from the Australian Law Reform Commission’s (ALRC) Copyright and the Digital Economy inquiry. This inquiry was charged with determining if copyright exceptions and limitations were working in the digital age. The conclusion was that reform was needed. The ALRC recommended:
[Working paper] The secretive 2011 Anti-Counterfeiting Trade Agreement – known in short by the catchy acronym ACTA – is a controversial trade pact designed to provide for stronger enforcement of intellectual property rights. The preamble to the treaty reads like pulp fiction – it raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trademark law; the regulation of the digital environment; and border measures. Memorably, Susan Sell called the international treaty a TRIPS Double-Plus Agreement, because its obligations far exceed those of the World Trade Organization’s TRIPS Agreement 1994, and TRIPS-Plus Agreements, such as the Australia-United States Free Trade Agreement 2004. ACTA lacks the language of other international intellectual property agreements, which emphasise the need to balance the protection of intellectual property owners with the wider public interest in access to medicines, human development, and transfer of knowledge and technology.
The Australian government has released the draft report of its Pharmaceutical Patents Review, which had been tasked to “review the effectiveness of the Australian patent system in providing timely access to affordable pharmaceutical and medical treatments and supporting innovation.” The report considered domestic law on patents, data exclusivity, and pharmaceuticals, as well as Australia’s current trade obligations and its position in ongoing trade negotiations.
[Reposted from the AFINET website] The Australian Fair Trade and Investment Network (AFTINET), the Public Health Association and three other health organisations have made a submission to the review of pharmaceutical patents because the issue of patents and medicine is a key issue in the Trans-Pacific Partnership Agreement (TPPA) negotiations.
The US is demanding much stronger patent laws which would allow pharmaceutical companies to charge high prices for medicines for longer periods. Our submission argues that there is no evidence for stronger patent laws, and that the Australian government should reject such requests in the TPPA.
Tobacco giant, Philip-Morris, brought actions this year under investor-State arbitration mechanisms in investment treaties to challenge laws limiting (in Uruguay) or prohibiting (in Australia) the display of its trademarks in tobacco packaging. This has caused the Australian government to take a strong stance against any investor-State arbitration provisions in free trade agreements (FTAs), including exemptions from the proposed investor-state settlement provisions of the Trans Pacific Partnership Agreement (TPP), currently being negotiated. However, a closer look reveals a broad collection of older treaties that do not contain exceptions in modern treaties that could have avoided this situation. As a multinational-enterprise, Philip-Morris has attempted to evade these exceptions by going through subsidiaries to bring claims under more favorable treaties. This reveals that Australia’s new stance against investor-State arbitration may do nothing to prevent similar claims being brought in the future.
The Australian Law Reform Commission is seeking submissions on its paper Copyright and Digital Economy Issues Paper. The paper and questions it raises are described below. The deadline for submissions is November 16, 2012.
August 2012: With a view towards providing structure to the debate regarding the adequacy of present exceptions and licensing in the digital environment, the Australian Law Reform Commission (ALRC) published an issue paper on August 20, 2012 on its’ inquiry, entitled Copyright and the Digital Economy.
A joint statement by the Green Party of Aotearoa New Zealand, the Australian Greens, and the Green Party of Canada criticizes the leaked investment and intellectual property chapters of the TPP. It also critizes the lack of transparency in the negotiations and calls on governments to open up the negotiations. Excerpts from the statement on intelletcual property include: