The Right to Repair: Patent Law and 3D Printing in Australia

Considering recent litigation in the Australian courts, and an inquiry by the Productivity Commission, this paper calls for patent law reform in respect of the right to repair in Australia. It provides an evaluation of the decision of the Full Court of the Federal Court in Calidad Pty Ltd v Seiko Epson Corporation [2019] FCAFC 115 – as well as the High Court of Australia consideration of the matter in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41. It highlights the divergence between the layers of the Australian legal system on the topic of patent law – between the judicial approach of the Federal Court of Australia and the Full Court of the Federal Court of Australia, and the endorsement of the patent exhaustion doctrine by the majority of the High Court of Australia. In light of this litigation, this paper reviews the policy approach taken by the Productivity Commission in respect of patent law, the right to repair, consumer rights, and competition policy. After the considering the findings of the Productivity Commission, it is recommended that there is a need to provide for greater recognition of the right to repair under patent law. It also calls for the use of compulsory licensing, crown use, competition oversight, and consumer law protection to reinforce the right to repair under patent law. In the spirit of modernising Australia’s regime, this paper makes a number of recommendations for patent law reform – particularly in light of 3D printing, additive manufacturing, and digital fabrication. It calls upon the legal system to embody some of the ideals, which have been embedded in the Maker’s Bill of Rights, and the iFixit Repair Manifesto. The larger argument of the paper is that there needs to be a common approach to the right to repair across the various domains of intellectual property – rather than the current fragmentary treatment of the topic.

A Submission to the Productivity Commission Inquiry on the Right to Repair

EXECUTIVE SUMMARYThe Productivity Commission is to be congratulated for producing a comprehensive discussion paper on the complex and tangled topic of the right to repair. Taking an interdisciplinary, holistic approach to the issue, the Productivity Commission shows a strong understanding that the topic of the right to repair is a multifaceted policy issue. Its draft report covers the fields of consumer law, competition policy, intellectual property, product stewardship, and environmental law. The Productivity Commission displays a great comparative awareness of developments in other jurisdictions in respect of the right to repair. The policy body is also sensitive to the international dimensions of the right to repair – particularly in light of the United Nations Sustainable Development Goals. The Productivity Commission puts forward a compelling package of recommendations, which will be useful in achieving law reform in respect of the right to repair in Australia.

The Productivity Commission inquiry into mental health

The report of the Productivity Commission Inquiry into mental health was released in November 2020, estimating the economic cost of mental illness in Australia at over $200 billion a year. The report makes wide-ranging recommendations for improving the mental health of the population, reforming the mental health treatment system, and in the way mental health is managed in other sectors of society.

Infant removal and the lack of representation for parents

This paper throws a spotlight on the systemic disadvantage experienced by parents who have their children removed from their care. With data drawn from the annual reports of the Legal Aid of Western Australia, the child protection agency in Western Australia, and the Productivity Commission, the authors illustrate the disconnection between the agency’s policy to reunify children once removed from their birth parents; the resources made available to support families to overcome their difficulties; and how the gap is further widened when parents without financial means and who are disempowered face legal proceedings on their own. We profile the increasing numbers of infants who are removed, the decreasing numbers of these infants who are discharged from care, and the shortfall of grants of legal aid that are provided to parents when they go to court. For this group of parents, permanent loss of their children is a reality. The aim of the paper is to capture the extent to which there is a fundamental blemish on the principles of due process and fairness, and once statutory processes are triggered, the best interests of the child and the support of parents are contingent, with poverty being the key mediating factor.

The Repeal of Section 51(3) of the Competition and Consumer Act: A Mistake in Need of Correction

Section 51(3) of the Competition and Consumer Act 2010 (Cth), which exempted certain conditions in intellectual property licences from some competition law prohibitions, was repealed on 13 September 2019. The repeal goes against recommendations of numerous reform bodies and will expose conditions which are benign or indeed pro-competitive to per se prohibitions (which capture certain forms of conduct whether or not that conduct is likely to have anti-competitive effects). The repeal of section 51(3) is a mistake and is based on a faulty understanding of the recommendations made by the Harper Committee and the Productivity Commission. A new intellectual property exemption should be introduced into the Competition and Consumer Act 2010 (Cth) as a matter of urgency to ensure that competitively benign or pro-competitive conditions in intellectual property rights licences are not exposed to per se competition law liability.

Developing Trade

Executive SummaryThe UK faces no easy options in determining how to develop its approach to international trade post-Brexit. If it finally decides to leave the European Customs Union and Single Market, it faces the possibility either of simply crashing out of the EU without a deal; trying to form market-access agreements and Free Trade Areas (FTAs) with the EU and other countries; or unilaterally reducing tariffs and liberalising trade with all countries. Each course raises significant practical difficulties, and entails major disadvantages compared with staying in the Customs Union and Single Market.The economic costs of a ‘no-deal’ approach stand to be very large, including inevitable tariffs, obstruction of UK access to EU markets, physical disruption at borders, a damping of investment and the much-discussed problem of the Irish border. Assuming ‘no-deal’ does not happen, negotiating FTAs with other countries would be possible only after a lengthy transition period, as in the Withdrawal Agreement voted down in Parliament, and would depend on the shape of the ultimate post-Brexit trading relationship between the EU and the UK. The process would be difficult, costly, and protracted; would likely be concluded on disadvantageous terms; would be even harder to apply to trade in services; and would yield extremely small gains given the volume of UK non-EU trade that is already covered by FTAs. Finally, unilateral liberalisation, while ameliorating some of the drawbacks of the first two options, faces the same problems of loss of access to European markets and disruption to trade; and would entail severe economic pain with only very gradual gains.The UK needs to conduct a much more profound and considered debate on these issues before deciding to set aside the large benefits of membership of the Customs Union and Single Market for the significant difficulties and tenuous gains offered by the alternatives. Public debate on the economic effects of trade policy has so far lacked the detailed but necessary analysis of these questions. It seems essential to establish a national policy review institution, modelled on the Australian Productivity Commission, in order to stimulate such a debate.