Intellectual property (IP) rights provide IP owners with the time and opportunity to commercialise their creations. This protection serves as an incentive to innovate.
The creator of IP is not necessarily the only owner. IP ownership can be agreed upon through appropriate contractual arrangements, especially with employees, suppliers, distributors and manufacturers.
IP rights exist in many forms. In some cases they don't need to be registered in order to be of value. Each type of IP provides different competitive advantages.
Registering a business, company or domain name does not give you exclusive rights like registered IP does. If you register a business, company or domain name, you do not automatically have the right to use that name as a trade mark.
Examples:
Polymer bank notes, anti-cervical cancer drug - Gardasil
Patent
What's protected:
Inventions and new processes.
A patent protects how an invention works or functions.
Examples:
Qantas, Lonely Planet
Trade mark
What's protected:
Logos, words, letters, numbers, colours, a phrase, sound, scent, shape, picture, aspect of packaging or branding - or any combination of these.
A trade mark identifies the particular goods or services of a trader as distinct from those of other traders.
Examples:
Footwear, fashion items, kitchen appliances
Registered design
What's protected:
Product designs.
The visual appearance of a product is protected, but not the way it works.
Examples:
Cotton plants with insect resistance and the pink iceberg rose
Plant breeder's rights
What's protected:
New plant varieties.
Plant breeder's rights protect the commercial rights of new plant varieties.
Examples:
Scotch Whisky, Stilton, Margaret River
Geographical Indications
What's protected:
A geographical indication, or GI, identifies a good as originating in a specific territory, region or locality where a particular quality, reputation or other characteristic is essentially attributable to its geographical origin. Australia has a dual system for protecting GIs –certification trade marks can be used to protect GIs for all goods, while GIs for wine can be protected on a standalone wine register.
Examples:
Game of Thrones, TV series
Copyright
What's protected:
Drawings, art, literature, music, film, broadcasts, computer programs.
The owner's original expression of ideas is protected, but not the ideas themselves.
Examples:
Coca-Cola has used trade secrets to keep its formula from becoming public for decades
Other
What's protected:
Trade secrets and confidential information.
These types of IP rights give creators certain rights and privileges depending on the type of IP protection.
Automatic protection
Type of IP protection | What's protected | What it means | Example |
Drawings, art, literature, music, film, broadcasts, computer programs | The owner's original expression of ideas is protected, but not the ideas themselves | Games of Thrones TV series | |
Any confidential information, including secret formulas, processes, and methods used in production | These types of IP rights give creators certain rights and privileges depending on the type of IP protection | Coca-Cola has used trade secrets to keep its formula from becoming public for decades | |
Layout designs or plans of integrated circuits used in computer-generated designs | Similar to copyright, the owner’s original layout design is protected, but they have a unique form of protection | Computer chips or semi-conductor chip designs in pacemakers and PCs |
Copyright
The moment an idea or creative concept is documented on paper or electronically it is automatically protected by copyright in Australia.
We do not handle copyright. The responsibility for copyright belongs to the Department of Infrastructure, Transport, Regional Development and Communications.
Copyright protects the original expression of ideas, but not the ideas themselves.
Common works protected by copyright include books, films, music, sound recordings, newspapers, magazines and artwork.
It also protects originally created typographical arrangements, databases, media broadcasts, computer programs and compositions of other people's work such as academic journals or CD compilations.
Copyright protection is provided under the Copyright Act 1968 and gives you exclusive rights to license others in regard to copying your work, performing it in public, broadcasting it, publishing it and making an adaptation of the work.
How it works
Copyright doesn't protect you against independent creation of a similar work. Legal actions against infringement are at times complicated by the fact that a number of different copyrights may exist in some works - particularly films, broadcasts and multimedia products.
Copyright laws differ from country to country. Australia is party to a number of treaties that increase the copyright protection of international works. The Australian Copyright Council provides more information on copyright, including international considerations.
Consider using a copyright notice
Although a copyright notice with the owner's name and date is not necessary in Australia, it can help prove your ownership of the copyright. Using a copyright notice can also act as a deterrent to potential infringers.
Duration of protection
Depending on the material, copyright for literary, dramatic, musical and artistic works generally lasts 70 years from the year of the author's death or 70 years from the year of first publication after the author's death. Copyright for films and sound recordings lasts 70 years from their publication or 70 years from the year in which they were broadcast.
Any inquiries regarding copyright should be directed to the Department of Communications and the Arts.
Trade secrets
A trade secret is different from a trade mark. We do not ‘register’ trade secrets.
A trade secret is proprietary knowledge and it is up to you to protect that knowledge. One way you might keep this knowledge out of competitors’ hands is by ensuring employees or distributors sign confidentiality agreements.
Examples of trade secrets include:
- the age-old recipe for Coca-Cola
- the combination of herbs and spices used in Kentucky Fried Chicken.
The Coca-Cola company has used trade secrets to keep its formula from becoming public over a period of decades. It never applied for patent protection, so it was never required to disclose the formula.
Common law provides protection for infringement of trade secrets, breach of confidentiality agreements and passing off trade marks. Proving a breach of confidentiality under common law can be complex and is potentially more costly than defending registered rights.
Limitations of trade secrets
Secrecy does not stop anyone else from inventing the same product or process independently and exploiting it commercially. It does not give you exclusive rights and you are vulnerable when employees with this knowledge leave your firm.
Trade secrets are difficult to maintain over a long time or when many people know the secret. When contractors and employees leave, you should ask them to provide written undertakings that they will not compete with your business after they leave, in addition to signing a confidentiality agreement. It is often much easier to prove competition than breach of confidentiality.
These undertakings are difficult to enforce and need to be prepared by your legal adviser. You need to be careful that the undertaking does not restrict the contractor's or employee's right to earn a living.
Circuit layouts
Circuit layouts are the layout designs or plans (topographies) of integrated circuits used in computer-generated equipment. They are sometimes referred to as computer chip or semi-conductor chip designs.
We do not handle the rights associated with circuit layouts. As with copyright, this is the responsibility of the Department of Communications and the Arts.
Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips. While these rights are based on copyright law principles, they are a separate and unique form of protection.
A circuit layout is a two-dimensional representation of the three-dimensional location of electronic components in an integrated circuit.
Circuit layouts are usually highly complex and the intellectual effort in creating them is considerable and may be of great value. An integrated circuit or chip made from a layout is vital in all kinds of electronic devices, from pacemakers to personal computers.
Protecting a circuit layout
If you are the owner of a layout design, you are not required to register it to be granted rights. As the owner of an original circuit layout, you have the exclusive right to:
- copy the layout in a material form
- make integrated circuits from the layout
- exploit it commercially in Australia.
Commercial exploitation may occur by importation, sale, hire or distribution of a layout or an integrated circuit made according to the layout.
Duration of protection
From the first commercial exploitation, rights continue for 10 years. The first commercial exploitation must occur within 10 years of creation of the layout, or 10 years from when it was made. So the maximum possible protection period is 20 years from the year of making an eligible layout.