Intellectual property and the Trade Practices Act
Currently, s. 51(3) of the Trade Practices Act exempts certain IP rights from
some provisions of Part IV of the Act. Specifically, the imposing of, or giving
effect to, conditions of licences and assignments of IP are exempt from ss.
45 (including ss. 4D and 45A), 47, 50 and 50A to the extent that those conditions
relate to the subject matter of the relevant IP right.
The Australian National Government has decided that s. 51(3) will be amended to expose terms and conditions of Intellectual Property licences and assignments to Part IV of the Trade Practices Act to a greater extent than is currently the case. IP licensing would be subject to the provisions of Part IV, but a contravention of the per se prohibitions of ss. 45 (i.e. ss. 45A and 4D) and 47 would instead be subject to a substantial lessening of competition test.
After consulting interested parties, the ACCC will issue guidelines outlining its enforcement approach to these provisions. These guidelines would outline when IP licensing and assignment conditions might be exempted under subsection 51(3), when IP licences and assignments might breach Part IV of the Act, and when conduct that is likely to breach Part IV of the Act might be authorised.
For further information on Intellectual property rights in Australia visit the IP Australia website.