Impact on genetic research

28.48 The protection of genetic databases against unauthorised use raises significant policy considerations. Limiting access to, and the use of, the information contained in such databases can stifle potentially useful research. However, such protection may be necessary to provide sufficient incentive for a database owner to collect and arrange the data, and make it available for third party use.

28.49 As noted above, genetic databases created in Australia could be protected in various ways, including through copyright law, the use of TPMs, and contractual arrangements.[73] A researcher who seeks access to a genetic database for research purposes may need to negotiate a licence with the database owner, despite any fair dealing provisions that apply under the Copyright Act. It has been suggested that:

An unbridled use of technological measures coupled with anti-circumvention legislation and contractual practices would permit rights owners to extend their rights far beyond the bounds of the copyright regime, to the detriment of users and the free flow of information. The copyright bargain reached between granting authors protection for their works and encouraging the free flow of information would be put in serious jeopardy if, irrespective of the copyright rules, rights owners were able to impose their terms and conditions of use through standard form contracts with complete impunity.[74]

28.50 Where a database owner refuses to grant a licence to use its genetic database, or places unreasonable conditions on such use, this could constitute a breach of competition law. For example, a database owner might be in breach of s 46 of the Trade Practices Act 1974 (Cth) (TPA) if it has a substantial degree of market power in relation to the database (or the information held in it), and takes advantage of that power for the purpose of eliminating or substantially damaging a competitor, preventing entry into that market or a derivative market, or deterring or preventing a person from engaging in competitive conduct in that or any other market.[75] However, as Chapter 24 discusses, there are practical difficulties in establishing a breach of s 46 of the TPA.

28.51 As noted above, many of the genetic databases that are available online to Australian researchers are likely to be subject to the laws applying in overseas jurisdictions, rather than Australian copyright and contract law. However, the ALRC notes that genetic databases have been compiled in Australia, and has considered various options for reform to Australian copyright law to ensure an appropriate balance between the rights of copyright owners and users in relation to them.

[73] Database owners may also protect their databases through trade secrets law. In addition, one submission noted that biotechnology firms have applied for patents over databases of genetic information: Australian Centre for Intellectual Property in Agriculture, Submission P12, 29 September 2003.

[74] L Guibault, ‘Contracts and Copyright Exemptions’ in B Hugenholtz (ed) Copyright and Electronic Commerce: Legal Aspects of Electronic Copyright Management (2000), 125, 160, cited in I Kerr, A Maurushat and C Tacit, Technical Protection Measures: Part II The Legal Protection of TPMs (paper prepared for the Copyright Policy Branch of the Department of Canadian Heritage) (2002) Nelligan O’Brien Payne, 21.

[75]Trade Practices Act 1974 (Cth) s 46(1). See Ch 24.