Removal of the IP exemption in s51(3) of the CCA

Section 51(3) of the Competition and Consumer Act 2010 (Cth) (CCA) has been repealed by the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 (Cth). The repeal of section 51(3) will commence on 13 September 2019, and will mean that conduct involving intellectual property rights is no longer exempt from certain provisions in Part IV of the CCA.

The repeal will apply to the following conduct occurring before, on or after commencement:

  • granting a licence
  • making an assignment, or
  • entering into a contract, arrangement or understanding.

The repeal of section 51(3) was recommended by the Productivity Commission’s Intellectual Property Arrangements Inquiry Report (December 2016) and the Competition Policy Review (March 2015).

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 commencing on 13 September 2019. The ACCC cannot provide legal advice, but please contact us at Law Reform if you would like to discuss the notification or authorisation processes. In particular, notification and authorisation can provide immunity from competition law in cases where the particular arrangement or conduct is likely to result in a net benefit to the public.

The ACCC is also currently drafting guidelines on the application of Part IV of the CCA to intellectual property (Guidelines). These Guidelines will outline how the ACCC proposes to investigate and enforce Part IV in relation to conduct involving intellectual property rights. They will also provide hypothetical examples to illustrate conduct that the ACCC considers is likely or unlikely to contravene Part IV.

The ACCC will release draft Guidelines for public comment in mid- 2019, and will publish a final version before the repeal commences on 13 September 2019.

For more information, please contact us at Law Reform.

Published date: 
9 April 2019