Automated patent decision-making Bill should be passed: Senate committee

Automated patent decision-making will help 'simplify and streamline' Australia's intellectual property laws, according to the draft legislation that a Senate committee has recommended passing.
Written by Corinne Reichert, Contributor

A Senate committee has recommended that Parliament pass Australia's new intellectual property (IP) laws in a bid to promote and incentivise "investment in creativity, innovation, research, and technology".

The Senate Economics Legislation Committee's report said the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 [PDF] will phase out the innovation patent system, as well as allowing for automated decision-making on patents.

"Schedule 2 consists of 21 parts which implement a number of measures to streamline and align the administration of the Australian IP system," the report says.

"Schedule 2: Part 5 amends the Patents Act, Designs Act, PBR Act, and Trade Marks Act to enable the commissioner and the registrars to arrange for a computer program under their control to make decisions, exercise powers, and comply with obligations under the legislation."

Under the Bill, the registrar may "arrange for the use, under the registrar's control, of computer programs for any purposes for which the registrar may, or must, under this Act or the regulations: make a decision; or exercise any power or comply with any obligation; or do anything else related to making a decision".

According to the Bill's explanatory memorandum [PDF], the introduction of automated decision-making will ease the burden on the commissioner and registrars, who have to "make a large number of decisions" that are currently delegated to IP Australia employees.

"These decisions range from simple decisions that require no discretion to complex decisions that require judgement to be exercised. The use of computerised and computer-assisted decision-making will improve the timeliness and accuracy of decision-making and enable staff to deal with more complicated matters," the explanatory memorandum says.

"Consequently, IP Australia intends to continue to explore and use new technologies to deliver a high standard of service, which includes the ability to make decisions by computer programs."

IP Australia will then "institute internal governance" to ensure that computerised decision-making is only used with direct approval of the commissioner or registrar, which will also allow written submissions to be received in electronic form.

"As IP Australia adopts further electronic systems for administering the IP rights and for keeping customers informed, there is increasingly less need to give notices or perform actions in writing," the explanatory memorandum says.

"This part addresses these issues through a number of amendments to give IP Australia the flexibility to take actions or give information by any means of communication, including by electronic means."

Federal government agency IP Australia had proposed the implementation of the Productivity Commission's report into IP laws through two separate Bills, with the second Bill -- the IP Laws Amendment (Productivity Commission response Part 2 and other measures) Bill -- to make further reforms at a later date.

The government had in August finally tabled its response to the Productivity Commission's report into intellectual property, but did not lend its full support to the recommendations on circumventing geoblocking technology, implementing a fair use exception for copyright infringement, and expanding the safe harbour scheme.

The Australian Government Response to the Productivity Commission Inquiry into Intellectual Property Arrangements: August 2017 [PDF] had merely "noted" the recommendation that it amend the Copyright Act to make clear it is not a copyright infringement for consumers to circumvent geoblocking technology, and that it avoid entering international agreements banning consumers from doing so.

The government is currently also consulting on safe harbour industry code regulations after the Senate committee in March advised extending the safe harbour regime, to which cloud services were added in May.

The government will also be implementing a fair use provision as part of its ongoing Copyright Act modernisation regime.

"By using digital technology, we can now create, distribute, and consume content faster and more easily than ever before. Our policies and laws need to keep up with these changes and continue to reflect the interests of copyright creators, users, and distributors," the department said when launching the fair use consultation paper.

It passed digital fair dealing for the Copyright Act in June last year, with the Copyright Amendment (Disability Access and Other Measures) Bill 2017 making provisions for access to copyright material by those with a disability, along with protecting educational facilities, key cultural institutions, libraries, and archives.

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