Is IP protection bad? Possum Magic, Khe Sahn and the Productivity Commission vs Intellectual Property

Australian TV show, Q&A, gave intellectual property a rare but brief time in the sun on Monday night.

Interestingly, it took one of our most right wing politicians, Jacqui Lambie and one of our hardest rockers, Jimmy Barnes, to lambast what I agree is a quite ludicrous proposal from Australia’s Productivity Commission.

malcolm-mcbratney-legallifestyle-blog-jimmy-barnes-possum-magic-jacqui-lambie-copyright-qa

Amongst other proposals in its draft report into Australia’s Intellectual Property Arrangements (http://www.pc.gov.au/inquiries/current/intellectual-property/draft), the Productivity Commission suggested that the term of copyright protection in Australia be reduced from the current term (in most cases) of the life of the author plus 70 years to a flat 15 years.

There are policy arguments either way and I won’t bore everyone with them now. You can read them in the report if you are finding it hard to fall asleep.

You won’t find me agreeing with Jacqui Lambie terribly often, but her Possum Magic (http://memfox.com/books/possum-magic/) argument (that one of Australia’s most loved books would now not be protected by copyright) was one of the best IP arguments I’ve heard in some time.

Similarly, I suspect Jimmy Barnes’ political views would usually differ from my own, but again, I can’t see how the Productivity Commission could seriously be suggesting that Khe Sahn should no longer be protected by copyright.

As an IP lawyer however, what I found most astounding however was that in its own report the Productivity Commission even notes that Australia is party to various international treaties and agreements that require us to adhere to various IP standards, including the term of protection and prevent us from doing so. For example in their own report the Productivity Commission says :

At section 4.1 “Although copyright law is implemented on a domestic basis, the minimum coverage and duration of protection has long been governed by international treaties. As noted in the previous chapter, the earliest multilateral copyright treaty, the Berne Convention, was signed in 1886.

And

At section 17.3 “Australia has a long history of multilateral cooperation on standards of IP protection.   Australia is a party to a number of international agreements that set common rules for the protection of IP:

• Early treaties, such as the Paris Convention for the Protection of Industrial Property 1883 and the Berne Convention for the Protection of Literary and Artistic Works 1886 represent initiatives to agree IP standards on a multilateral basis.

 

• TRIPS, establishes a minimum set of obligations on WTO members for the protection and enforcement of IP. Countries can provide higher levels of protection, but they cannot provide less without risking a dispute with another WTO member.

These proposals and many more of the other suggestions simply don’t take account of real world realities. If Australia followed this and other equally ludicrous proposals (don’t get me started on what they said about patents) we would be in breach of a treaty that has been in place since 1883 and the TRIPS agreement, both with significant adverse consequences for Australia and its innovators and creatives.

I do wonder how many hospital beds could have been funded out of the money spent on this quite pointless and also dangerous exercise. Intellectual property is not bad, it is a necessary legal right to encourage creativity and innovation. Australia cannot and should not resile from its international IP obligations.

If we have Jacqui Lambie and Jimmy Barnes agreeing on something, maybe the Productivity Commission and our government should listen.  Otherwise there will be no more possum magic and the last train out of Sydney will certainly be gone.

Malcolm McBratney

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