free trade

GIs, free trade, Australia and the EU

With the closing stages of the negotiations between Australia and the EU over the proposed free trade agreement almost upon us, the EU has proposed a list of 55 further wine geographical indications it wants to protect.[1] Amongst others, the list includes “prosecco” and “vittoria”. The Department of Agriculture is holding a Public Objections Process to assess the impact of accepting these names.

There are four grounds for potential objection (and only four):

  1. The EU GI name is used in Australia as the common name for the relevant good, including as a type or style of wine.
  2. The EU GI name is used in Australia as the name of a grape variety, plant variety or an animal breed.
  3. The EU GI name is identical to, or likely to cause confusion with, a trade mark that is registered in Australia or the subject of a pending application made in good faith in Australia. Confusion may be likely where a trade mark consists of, or contains, the EU GI name or something so nearly resembling it.
  4. The EU GI name is identical to, or likely to cause confusion with, an unregistered trade mark that has acquired rights through use in good faith in Australia. Confusion may be likely where a trade mark consists of, or contains, the EU GI name or something so nearly resembling it.

You can see what the problem is with a name like “prosecco” as there are lots of Australian producers of wines under that name, all the more so when the grape variety formerly known (or thought to be known) as prosecco was renamed in 2009 by an Italian government decree as “glera”.

SBS Italian published an article (in Italian) looking at the issue.[2]

I also wonder about “Vittoria”, especially if the EU is pressing for protection not just against use of the name itself but terms and expressions which “evoke” that. There are, afterall, lots of wines which are made in a place called “Victoria”.

Whether Australia agrees to these names or not, Australian producers using these names are effectively giving up the potential to sell in the EU (unless they go to the trouble and expense of different labelling).

The consultation process has been running since late March and closes at 12 NOON AEST Friday 21 APRIL 2023. If you want to lodge an objection (good luck!), you must make your submission via here. Be warned: this is a “hard” deadline; finalisation of the deal is that close.

If you are feeling a little bit like “deja vu”; you’re right, there was a whole round of consultations about a much more extensive range of names two years ago.


  1. The full list of the new wines is Appendix A to the Public Objections Process: EU Wine Geographical Indications also available here (pdf).  ?
  2. If like me your Italian is not up to that here’s a link to Google Translate’s interpretation. Lid dip (for the article in the original) Dr Paula Zito.  ?

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Safe harbours to be Extended

The Commonwealth Government introduced the Copyright Amendment (Service Providers) Bill 2017 into Parliament today.

As its name suggests the purpose of the Bill is to extend the class of persons who can claim the benefits of the safe harbour provisions in the Copyright Act 1968 provided in sections 116AA to 116AJ.

The way the amendments will work is essentially to remove the references to “carriage service provider” and replace them with a new reference to “service provider”.

For this purpose, “service provider” will be defined to mean:

116ABA Definition of service provider

(1) Each of the following is a service provider:

(a) a carriage service provider;

(b) an organisation assisting persons with a disability;

(c) the body administering a library, if:

  (i) all or part of the collection comprising the library is accessible to members of the public directly or through interlibrary loans; or

  (ii) the principal purpose of the library is to provide library services for members of a Parliament;

(d) the body administering an archives;

(e) the body administering a key cultural institution;

(f) the body administering an educational institution.

However:

(2) If a service provider is not:

(a) a carriage service provider; or

(b) an organisation assisting persons with a disability; or

(c) the body administering an educational institution, being an educational institution that is a body corporate;

this Division only applies to activities that the service provider carries out because of its relationship to the relevant library, archives, key cultural institution or educational institution mentioned in subsection (1).f you are not one of those people, you will be able to claim the benefit of the safe harbours

If your name is Google or Facebook, or you are some other provider of services inflicting user generated content on the world, you won’t qualify.

The new definition of “service provider” may be compared with the definition enshrined in the Australia – US Free Trade Agreement in Article 17.11.29(xii) (scroll down):

(xii) For the purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing,[1] and for the purposes of the functions referred to in clause (i)(B) through (D),[2] service provider means a provider or operator of facilities for online services or network access.

This is because, the Government has pointed out, copyright industries are highly valuable for Australia. Accordingly, the consultation process will continue:

In so doing, the Government will be mindful of the need to ensure the rights of creators are properly protected. Australia’s copyright framework ensures that creators can receive a fair return for their work. Australia’s copyright industries make a significant contribution to our economic and cultural life, including collectively generating approximately $122.8 billion in economic activity, $6.5 billion in exports and employing more than 1 million Australians.

Bill (pdf)

EM (pdf)

Minister’s Press Release

Other links


  1. That is a 116ac Category A type activity.  ?
  2. That is a Category B, Category C or Category D type activity.  ?

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More safe harbour consultations

You may recall that, when the Copyright Amendment (Disability Access and Other Measures) Bill 2017 was introduced into Parliament, it was missing the schedule in the exposure draft that extended the “safe harbour” provisions from “carriage service providers” to “service providers”.[1]

This is apparently a complicated issue and so the Government has announced it is engaging in a round of consultations led by no less a personage than the Secretary of the Department of Communications and the Arts.

The Secretary is required to report to the Minister on the outcome of the consultations by early June 2017.

Press announcement here and, if you want to try to be invited to the consultations, some contact details here.

Anybody wonder what President Trump would do if he found out we were in breach of the Australia – United States Free Trade Agreement?[2]


  1. The safe harbour provisions protect “carriage service providers” from liability to damages where they merely provide the facilities used by an infringer: see ss 116AC, 116AD, 116AE and 116AF.  ?
  2. Check out article 29(b) of Chapter 17.  ?

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