Repeal of Competition and Consumer Act section may stymie small business

THE INSTITUITE of Public Accountants (IPA) has expressed concerns about the upcoming repeal of the Competition and Consumer Act 2010 (CCA) Section 51(3) and its potential impact on small business.

The repeal of the section, to take effect on September 13, 2019, will mean that conduct involving intellectual property rights (IPR) will no longer be exempt from certain provisions in Part IV of the CCA, particularly in relation to granting a licence; making an assignment; or, 'entering into a contract, arrangement or understanding'.

"The IPA supports innovation as a means to boost small business productivity and intellectual property protection plays a major part in innovation and entrepreneurialism,” IPA chief executive officer, Andrew Conway said.

“Therefore, we remain cautious over the repeal and we encourage the ACCC to raise awareness amongst the small business community as to the consequences that may impact the sector. 

“While there are guidelines in relation to the repeal, these are for professional advisers, and not aimed at small business people.  We urge the ACCC to produce a simplified version accessible to small business operators.  It is essential that small businesses, that may be impacted by the repeal, clearly understand the implications and seek the appropriate legal advice as to their particular intellectual property needs.

“This repeal may have a direct impact on Section 45 of the CCA and as a result could stifle competition rather than encourage it,” Mr Conway said.

He said Section 45 of the CCA prohibits contracts, arrangements, understandings or concerted practices that have the purpose, effect or likely effect of substantially lessening competition in a market, even if that conduct does not meet the stricter definitions of other anti-competitive conduct such as cartels.

“Without the ability to control how intellectual property is to be used, a licensor may be reluctant to licence the intellectual property at all. This will be detrimental for downstream competition and may also deter innovation," Mr Conway said.

“Small businesses will not be in a position to determine whether such a condition is likely to substantially lessen competition in the relevant market, in order to have certainty about their legal position.

“To prevent small business taking an overly cautious approach, the ACCC could introduce a class exemption that would create some certainty in how to deal with licensing and transfers of IPR so as not to infringe the CCA.  The European Commission has a block exemption that applies to technology transfer agreements and a similar approach could be taken here in Australia.

“The IPA Deakin SME Research Centre will be monitoring the implications of the repeal and consider if such class exemptions are appropriate in this regard,” Mr Conway said.


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