The system of intellectual property (IP) law in Australia can be confusing. Broadly speaking, the regulatory regime in Australia (and in most places around the world) classify protection for IP into separate categories. The four areas most businesses and industries may encounter in their daily activities are:
1. Copyright,
2. Trade marks;
3. Designs; and
4. Patents
While each area gives the holder of the intellectual property certain rights (such as exclusivity to that particular piece of intellectual property) how a person goes about acquiring that IP and protecting it to ensure it remains enforce is different.
Copyright
Copyright is the protection of the original expression of ideas, but not the ideas themselves. For example, a person might not be able to copyright a story about wizards and magic but they can copyright Harry Potter, an expression of the idea of a story about wizards and magic told in an original way involving particular unique characters and plots. Anyone who creates something new or expresses an idea in a unique way can potentially claim copyright protection over that expression. Copyright is the
Under the Copyright Act 1968, copyright can exist in literary, dramatic, musical and artistic works. The Copyright Act 1968 provides that copyright is also available in sound recordings, cinematograph films, television broadcasts and sound broadcasts, and published editions of works.
Copyright is automatic and immediately comes into force (and can be used to protect that IP) once the work is created. Once a work is created, copyright will vest in it for a finite period, depending on the type of work it is. In some cases it may last for a period of the life of the author plus 70 years!
It is not necessary to register a piece of work to have its copyright protected. Due to the intangible nature of IP, in some cases disputes might arise about whether or not a certain work has acquired copyright or who owns the copyright. If you have any questions or concerns that someone has improperly used copied something you’ve created, please contact us to discuss your options to protect yourself and your work.
Trade marks
A trade mark is something used by a business to distinguish itself. It may be a logo, picture, letter, number, word, phrase, sound, small, shape or packaging – anything which might be used by a company to “brand” itself and distinguish it from its competitors.
Registering a trade mark is important for businesses because it will allow them to stop others from trying to capitalise on the good will of those businesses by using a trade mark which may damage that brand and business. For example, a Coca-Cola might use its trade mark to stop a non-Coca-Cola beverage manufacturer from using the Coca-Cola logo to sell “cola” which contains arsenic (not a Coca-Cola ingredient) which make people sick.
Protection for a trade mark is not automatic in Australia. Trade marks needs to be registered with IP Australia, the government body responsible for administering the trade mark system in Australia. IP Australia will examine a proposed trade mark to see if it complies with the requirements under the Trade Mark Act 1995. If accepted and registered, a trade mark can last indefinitely provided a registration renewal fee is paid. This will give long lasting protection to businesses to protect their valuable brands.
There have also been recent changes to IP law in Australia due to the various international trade agreements the Federal Government have entered into. To avoid confusion or the risk of losing your protection, it is important to consult an expert in IP law to find out how those changes may affect you.
Designs
IP protection for designs refer to the protection given to the features of a shape, configuration, pattern, ornamentation which give a product a unique appearance which is new and distinctive. There is some overlap between designs and the other areas of IP law (such as trade marks and copyright).
Similar to trade marks, designs need to be registered with IP Australia to be protected and enforceable against unauthorised use. Design registration is intended to protect designs which have an industrial or commercial use.
A registered design gives the owner, exclusive rights to commercially use it, licence or sell it.
Patent
A patent is a right granted for any device, substance method or process which is new, inventive and useful. Patents are for new inventions or processes which bring a unique or original improvement to society. The theory behind allowing people to obtain patents is to allow them to capitalise on their invention for a set period before making it freely available to the world and to encourage further innovation.
Patents must be registered with IP Australia, just like trade marks and designs. IP Australia examine applications for patents to see whether or not they comply with the Patents Act 1990 and should be granted protection. Depending on the type of patent, protection may last either 8 or 20 years.
The process of applying for a patent is complex, expensive and difficult. It might not necessary be the right option for your business. It is
Contact us to find out more about what IP is right for your business and how best to protect your valuable intangible assets!