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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.
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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 that copyright in the work is claimed by the author.
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There have been a number of changes to copyright legislation due to the implementation
of the Australia-United States Free Trade Agreement. The most significant change
is the extension of the term of protection for most copyright material by 20 years,
from 50 to 70 years from the date of the author’s death. For more information
about copyright in Australia, visit the Attorney-General’s Department website
at www.ag.gov.au or the Copyright Council’s website at www.copyright.org.au.
Confidential Information and Trade Secrets
Your business has information that would lose its value if it were obtained by your competitors.
For example, this could include trade secrets, product manufacturing specifications, business
and marketing plans, 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 the subject matter of a trade secret is patentable, simply
keeping a trade secret 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 now 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).
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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. Alternatively you
can visit www.ipaustralia.gov.au/smartstart for a confidentiality agreement
generated by an IP lawyer that you can fill in and use during discussions with
potential partners and financial backers. Before using it however, you must
determine whether the agreement is appropriate for your particular circumstances.
If in doubt, consult a lawyer.
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Employees and confidential information
Employees can leave knowing a lot about your business-which could affect your competitive
edge if they move to a competitor or start up a competing business. 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.
Confidential materials should be marked with a confidentiality legend e.g. CONFIDENTIAL, 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
your business situation.
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How do you ensure confidentiality?
You can take steps to make sure what you want kept under wraps stays that way by:
- Identifying information to be protected.
- Identifying key people who need to be made aware of your confidential information and restrict disclosure of the information only to those persons.
- Marking commercially important material with COMMERCIAL IN CONFIDENCE in big letters on the document, file or storage box.
- Restricting employee access to critically sensitive information.
- Using document shredders or locked bins for disposal.
- Insisting that employees who have access to such information sign confidentiality agreements.
- Insisting that all parties or contractors performing outsourced services sign confidentiality agreements to ensure your information is kept secret.
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