Intellectual property rights will soon be fully subject to competition law in Australia, following the repeal of the exemption in section 51(3) of the Competition and Consumer Act 2010.
The repeal, which comes into effect on 13 September 2019, will mean that competition law will apply to conduct involving intellectual property rights in the same way as it does to other types of conduct. The limited exemption in section 51(3) has applied since the inception of what was the Trade Practices Act, and sought to strike a balance between the statutory monopoly granted to intellectual property rights holders and the generally anti-monopoly effect of competition laws.
The repeal poses new risks when dealing with IP rights, particularly in relation to IP licensing and distribution arrangements.
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