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This article explores the intellectual property regimes in India and Australia, and how they have evolved over time to adapt to changing economic and technological conditions. The article also highlights the role of the respective constitutions in providing a legal framework for intellectual property protection, and how international agreements and treaties have influenced their IP laws.
Both India and Australia were part of the British Empire considered British "dominions," with India gaining the status of a British colony in 1858 and, and Australia (being a collection of British colonies that were united into a federation) in 1901. The term "dominion" was used to describe the status of certain colonies or territories within the British Empire with a degree of autonomy and self-government.
The Indo-Pacific partnership between India and Australia in the Indo-Pacific region was first formalized in 2014, with the signing of a Joint Declaration on Security Cooperation between the two countries, aiming to promote security, stability, and prosperity in the region through cooperation on a range of issues including trade, investment, defence and security, and maritime security.
Since then, both countries have taken steps to strengthen their partnership, including through high-level visits and dialogue, as well as through joint military exercises and collaboration on regional and global issues. Both countries have also initiated dialogues and agreements on various sectors such as energy, agriculture, science and technology, and education. Australia and India have also signed agreements on Cyber Security and Critical Infrastructure protection. The partnership is seen as an important step in ensuring a stable and secure Indo-Pacific region.
IP Regimes in both the countries
The value of intellectual property was recognized for the first time in the Paris Agreement for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). The primary legislation governing IP in Australia is the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 which deals with patents, trademarks, designs, and plant breeders’ rights.
In India, the primary legislation governing IP has been the Indian Trade Marks Act, of 1999, The Patents Act, of 1970 (amended in 2005), The Copyright Act, of 1957, The Designs Act, of 2000, The Geographical Indication of Goods (Registration and Protection) Act, 1999, and The Protection of Plant Varieties and Farmers Rights Act, 2001.
The IP regime in Australia and India has evolved over time to adapt to changing economic and technological conditions, as well as to comply with international standards and obligations. In the late 1990s, the Australian government implemented a series of changes to the patent system, including the introduction of an "innovation patent" system, which provided a lower level of protection for inventions that were not considered to be true "novel" or "inventive."
In the early 2000s, the government introduced further changes to the patent system, introducing a "second tier" opposition system, which allowed third parties to challenge a patent's validity after it was granted. In 2012, the government passed the Intellectual Property Laws Amendment (Raising the Bar) Act, which aimed to increase the quality and standard of patents granted in Australia, by making it more difficult to obtain patents for obvious or unclear inventions.
In India, the IP regime has undergone significant changes as well, with major amendments in 2005, that aimed to bring India's patent laws in line with international standards, particularly the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These changes included the introduction of product patents for pharmaceuticals and chemicals, which had previously been excluded from patent protection in India. The introduction of the ‘pre-grant’ opposition and ‘post-grant’ opposition system to patents in India allowed third parties to challenge the validity of a patent application or grant before or after it is granted.
In Australian Constitution, IP is protected under Section 51(xviii) which gives the Commonwealth power to make laws for "the protection of copyright,". But the Indian Constitution not only provides power to the legislation for making laws but the term ‘Intellectual Property’ is enshrined in the Constitution itself. ‘Right to Property’ was a fundamental right under Article 19(f) which was changed to a legal right under Article 300A by the 44th amendment, removing any restrictions on the power to make laws on Intellectual Property Rights.
In K.T. Plantation & Another vs. State of Karnataka, 2011, the Supreme Court of India held that the expression ‘Property” in Article 300A is not confined to land only, but also includes intangibles like copyrights and other intellectual property rights. Article 253 played another important role as it mandates the recognition of the international aspects of laws, legislation, and agreements that empowers the Parliament to enforce international treaties through the law-making process.
Provisions like Article 372(1) repealed the Patent Act of 1911 to the new Patent Act of 1970 and hence due to the presence of these articles, it has been possible for the per-constitutional Intellectual Property Rights to be in force and adopt various International Treaties. Presently, majority of the Intellectual Property Laws are influenced by international laws, like the present patent law is a result of various international instruments like the Budapest treaty, TRIPS agreement, UN Convention on Biodiversity, and others.
Both the Indian and Australian constitutions act as a custodian for economic activities within the purview of mandated rights through provisions such as the protection of property rights and the limitation of government power to regulate economic activities. Likewise, utilitarianism is reflected in the Indian and Australian constitutions through provisions such as the right to work and the duty of the state to promote the welfare of the people.
Views of the Authors are personal. Lawbeat does not endorse them. Ms. Abhilasha Semwal is Program and Process Manager at Sanrachna Foundation and Ms. Shivani Singh is a Legal Researcher - IP at Sanrachna Foundation.
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