The ACCC has today released draft guidelines on the repeal of subsection 51(3) of the Competition and Consumer Act 2010 (Cth) (CCA) for consultation.
Prior to the repeal, certain conduct involving intellectual property rights was exempt from certain parts of the competition law. From 13 September 2019, when the repeal takes effect, this conduct will be subject to all aspects of Australia’s competition law.
The draft guidelines outline the ACCC’s approach to enforcing the CCA following the repeal. They are designed to help intellectual property rights holders and legal and business advisers in transitioning to the new framework.
The guidelines also provide examples of conduct that the ACCC would now consider likely or unlikely to breach the anti-competitive conduct provisions of the CCA.
The ACCC is seeking comments ahead of finalising the guidelines before the repeal comes into effect. The ACCC welcomes comments or suggestions on the draft guidelines by 19 July 2019 via the ACCC consultation hub.
The ACCC will publish final guidelines before the repeal comes into effect.
Background
The intellectual property exemption in subsection 51(3) of the CCA was repealed by the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 (Cth), which received Royal Assent on 12 March this year.
Before its repeal, subsection 51(3) provided an exemption for certain conduct related to intellectual property rights from the CCA’s prohibitions on cartels, and agreements arrangements or understandings which have the purpose, effect or likely effect of substantially lessening competition.
The repeal of subsection 51(3) was recommended by the Harper Review and the Productivity Commission in its Intellectual Property Arrangements Inquiry Report. The ACCC supported the repeal in its submissions to both reviews.
The ACCC’s immediate focus is on compliance activities to ensure that businesses understand their new obligations under the CCA. We encourage parties to consider their existing contracts and arrangements prior to the repeal taking effect on 13 September 2019.