What just happened?
As foreshadowed in our previous articles on the topic (which can
be found
here and
here), the Government removed the IP Safe Harbour from the
Competition and Consumer Act 2010 (Cth) (the Act)
as of 13 September 2019.
Before then, the Safe Harbour exempted many IP-related
conditions in assignments and licences from the restrictive trade
practices provisions of the Act other than in relation to abuse of
market power and resale price maintenance.
What does this mean?
After 12 September 2019, those previously exempt conditions in
IP assignments and licences will, at the very least, be subject to
the Competition Test. This means that they will be unlawful if
their purpose, effect or likely effect is to substantially lessen
competition in a relevant market unless they are otherwise the
subject of an exemption (e.g. between related companies), an
authorisation on public benefit grounds, or, in the case of
exclusive dealing and resale price
