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STARTING A BUSINESS |
http://www.ipaustralia.gov.au/smart_start/protectingunregisteredip.htm |
PROTECTING UNREGISTERED IP Aside from patents, trade marks and designs there are a number of other IP rights that exist without the need for formal registration. Copyright and confidential information is discussed in this section. However, the law of passing off and the Trade Practices Act 1974 also offer businesses some protection against exploitation from competitors. Copyright Copyright in a work allows the owner to exclusively control and exploit the use of that work. Copyright covers books, art, music and sound recordings, photographs, software, databases, films and print, radio and television ads and other promotional materials. Copyright protects the expression of, and not the substance of, a work. For example, the actual text of a manual is covered, but not the ideas conveyed. Copyright does not protect manufactured articles. In Australia , copyright exists automatically when something is written down or recorded. There is no formal registration requirement to obtain copyright in Australia . It is a good idea to put the letter c in a circle at the end of the work, followed by the year, for example © John Howard 2002 to ensure that others know it is copyright. For more information about copyright in Australia , visit the Attorney-General’s Department website at www.law.gov.au or the Copyright Council’s website at www.copyright.org.au Confidential Information and Trade Secrets Your business has valuable information that would lose its value if it were obtained by your competitors. This could include for example trade secrets, process information, product manufacturing specifications, business and marketing plans and client lists and data. You can obtain relief in the courts for damage caused to your business by unauthorised disclosure or exploitation of this confidential information, and/or an injunction to prevent such a “breach of confidence”. Trade secrets are particularly important IP assets. The main benefit of trade secrecy is that it can exist for as long as the information remains confidential, whereas patents and designs have a limited monopoly term. Even if they are patentable, simply keeping trade secrets confidential can sometimes be a better strategy. The owners of the Coca-Cola soft drink formula certainly think so. Had they patented their mixture, the whole world would know the process and be able to manufacture the same substance. This type of strategy is only worthwhile if the product is difficult to reverse engineer (which means that it is difficult to ascertain exactly how it is manufactured). Confidential materials should be marked as such and kept under lock and key. Employees and others needing access to the information should be made aware of their obligations to keep it secret, preferably by written agreements. There can be a fine line between an employee’s general knowledge—which he or she can use freely—and knowledge that belongs to the business—which the employee can be required to protect even after leaving the business. Legal advice should be sought on suitable confidentiality policies for the business. |
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Confidentiality agreements Where confidential information must be disclosed, use confidentiality agreements. These are essentially agreements between a person possessing confidential information and the person to whom that confidential information will be disclosed, which outlines the conditions of the disclosure. A lawyer can work with you to draw up a confidentiality agreement and it’s wise to seek help where the issue is one involving substantial value or potential loss. |
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Employees can leave knowing a lot about your business—which could affect your competitive edge. Essentially employees can legally leave with what they have learned as part of their general work skills, but should not be leaving with employer-specific information. It is worth seeking advice about this issue if you employ a number of people who have exposure to the confidential information in your organisation. How do you ensure confidentiality? You can take steps to make sure what you want kept under wraps stays that way by:
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