Intellectual Property

Terms of Use

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• What is Intellectual Property?

  • Intellectual property is a way of protecting your rights to benefit from what you have created, written, invented or designed or from the business reputation you have built up.

• Can Intellectual Property be Owned?

  • Yes.  Intellectual property (like other property) can be owned, sold, licensed or - if not looked after properly - lost.

• Are Intellectual Property rights separate from ownership rights in the physical object?

  • Yes.  Intellectual property ownership rights are separate from the right to own the object.  For instance someone can buy a book at a book store and will own the book, but the copyright (one form of intellectual property) still belongs to the author or publisher.

• How can I benefit from intellectual property?

  • Intellectual property can be used (for instance to create goods that will be sold).  Intellectual property itself can be sold.  Intellectual property is often licensed: the inventor or owner of the intellectual property gives permission to someone else to use the intellectual property and receives a royalty in return.

• Do I need to worry about intellectual property?

  • If you are undertaking any kind of business (and many other kinds of activities) you should be aware of intellectual property issues.  If you breach someone else's intellectual property you could be exposed to liability.  If you fail to protect your own intellectual property you could find that your investment is stolen by someone else.

• What types of intellectual property are there?

  • This table sets out the main types of intellectual property and their application. 

     

    Intellectual Property Type	Application
    Trade Marks	Protect business reputation and business and product brands
    Copyright	Protection of works of literature, art, music, movies, software (and others)
    Patents	Protection of inventions (including business processes and software in some circumstances)
    Designs	Protection of original two and three dimensional designs particularly in application to products
    Plant Breeders Rights	Protection for plant varieties and the names of plant varieties.

     

• Why are they different?

  • Each type of intellectual property tries to protect innovation in a different way.  A single product can have more than one type of intellectual property right connected with it.  For instance a board game can involve copyright in rules, design rights in general appearance, patent in its function, and trade mark rights in its name.

• How do I protect my intellectual property?

  • Getting advice on protecting your intellectual property rights is critical.  How intellectual property can be best used to protect your investment will depend on many factors including your business and product/service types and your proposed relationships with business partners.  

  • Should I keep my intellectual property secret?

    • Yes, until you have properly protected it.  Other than copyright, any kind of unprotected release of your intellectual property may mean that you won't be able to protect it in future.  Often a confidentiality agreement is used to allow you to discuss your intellectual property while keeping it secret.

  • What if I have a great new business idea but I need to discuss it with potential business partners?

    • Not only intellectual property, but also commercially sensitive secret information can be protected by using a properly drafted non-disclosure or confidentiality agreement.

• Which type of intellectual property lasts the longest?

  • Potentially, trade marks are the longest lasting form of intellectual property right.  A trade mark must be renewed every ten years, but can be renewed indefinitely.

• What's the difference between an intellectual property lawyer and a patent attorney / trade mark attorney?

  • Intellectual property lawyers are fully qualified legal professionals and can act for you in legal disputes, provide legal advice and contract services.  Patent attorneys are exclusively licensed to prepare patent applications.  Both lawyers and trade mark attorneys are authorised to prepare trade mark applications.

• Intellectual Property in Context:  How does IP apply to your product or service?

  • Software

    • Is there a specific type of intellectual property especially designed to protect software?

      • While copyright law explicitly provides for protection of computer programs, this has a restricted meaning that typically only covers part of a software package.  Various types of intellectual property protection may be relevant to protecting software from infringement.  For instance a program might involve images, data, layout, film and documentation, in addition to executable code.  The best strategy will depend on the particular program involved.

    • What part of software is explicitly protected by the Copyright Act as a computer program?

      • What programmers typically refer to as the executable code is the explicitly protected part of software. 

    • How may copyright be relevant to other parts of software?

      • Copyright will apply to other parts of software as other categories of copyright protected material.  For instance images, text and tables will be protected as such.

    • Is it true that software cannot be patented?

      • No.  Some software can be patented.  However this will require the software to meet patent tests including novelty and that the software satisfies the requirement of being a new manner of manufacture.  A simple algorithm will not be patentable under the general rule excluding mathematical formulas.  A complex product producing a valuable commercial result (especially if both hardware and software components are involved) may be patentable.

  • Children's Literature

    • What special Intellectual Property questions does children's literature raise?

      • Children's literature can present special IP issues.  Apart from the copyright in the text of the book, most children's book have pictures associated with them which separately attract copyright.  A popular character from a children's book can also be separately protected as a trade mark.  Toys may be developed from such characters, and any distribution or manufacturing may require licensing agreements to protect the author's rights.

  • Games

    • How does Intellectual Property apply to a game?

      • Games have significant intellectual property rights and potential connected with them.  Game characters can become widely recognised and are sometimes separately protected or licensed (e.g. by trade mark protection).  Sometimes game characters will be re-commercialised in another context (e.g. as toys or as movie characters).  If a game is newly invented, it may be patentable.  Game designs and rules are subject of copyright protection.  The name applied by the game may be trade marked.   

  • Educational Courseware and other educational IP

    • What factors influence protection of educational courseware?

      • Educational courseware (lectures, workshop materials, examination papers) are usually valuable intellectual property of educational institutions.  They may be made available online and be subject to unfair exploitation.  Both the terms on which the courseware is acquired (e.g. creation by an employee or contractor) and the terms on which it is licensed to users, will impact on ownership and commercialisation of intellectual property in educational courseware.  Generally, it is preferable to explicitly determine the basis of licensing end-users in the use of educational courseware.

    • What are the implications of public licensing of educational courseware?

      • Sometimes an organisation will wish to make educational courseware publicly available.  The organisations objectives may include dissemination of learning or may be driven by the desire to promote awareness of the organisations work.  In either case the basis on which courseware is licensed should be carefully defined by licence terms which govern access to the materials.  The terms of such a licence will vary depending on a range of factors including whether the organisation wishes to make the courseware available on a purely non-commercial personal use basis or is unconcerned about future uses, or credit end users may give to the creating organisation.

    • Should educational organisations consider adoption of an IP policy?

      • Yes.  Most educational institutions generate massive volumes of intellectual property, in all its forms.  The consideration and adoption of considered intellectual property policies can help the organisation maximise the benefits of intellectual property to its work and minimise risks of costly intellectual property disputes.

  • Toys

    • Do toys involved intellectual property?

      • Yes.  Usually toys will be carefully designed.  Design protection may limit opportunity for competitors to piggy back on popularity of a toy protected by design law.  Trade mark protection of a toy is advisable as often the greatest value of the toy will be associated with the toy concept which will be attached to the toy's character. 

  • Business Processes

• Trade Marks are a form of intellectual property that protects business reputation and brand names. 

• Copyright was created initially as a form of intellectual property to protect authors of literary works.  Over time it was extended to works of art, and more recently to material such as broadcasts, and sound and film.

• Patents

• Designs

  • What protection is available for designs?

    • The Designs Act protects designs applied to manufactured or hand made products.  Under the Designs Act intellectual property in the form and appearance (including surface ornamentation) of a product, can be protected.

  • How long does design protection last?

    • Design protection lasts for five years and can be extended for a further five years.

• Contracts & Licences

  • What role do contracts play in intellectual property?

    • Contracts play a fundamental role in getting intellectual property to market.  Contracts enable business partners to work together with a high degree of certainty about their rights and obligations.

  • When might I need advice on an intellectual property contracts?

    • Whenever you are considering a business or other relationship that might affect your intellectual property rights (or your ability to access key intellectual property) you should consider obtaining expert intellectual property advice.  Advising and design of intellectual property agreements is complex.  No two cases will be the same.  Intellectual property commercialisation may involve deeds of assignment, licensing agreement, research agreements, consultancy arrangements, marketing and distribution agreements, confidentiality agreements, company establishment and shareholder agreements or other transactions.  Professional advice should be sought.

• Trade Secrets & Confidential Information

  • What is a "Trade Secret" or "Confidential Information"

    • Trade secrets or confidential information is knowledge that is not in the public arena that is of key importance to an organisation.  Sometimes unauthorised release of that information will mean that the organisation will lose a key commercial advantage over its competitors, and it will wish to keep it secret for that reason.  Another example of when protecting access to information will be important is confidential information the release of which will seriously harm the reputation of the organisation. 

  • Are Trade Secrets or Confidential Information Intellectual Property?

    • Confidential Information and Trade Secrets are often lumped in with other forms of intellectual property, but strictly speaking they are not a form of "property".

  • How can Trade Secrets and Confidential Information be protected?

    •  

• Business Names

  • Do business names give an exclusive right to use a business name?

    • No.  A business name only provides exclusive registration in one state or territory.  It will not prevent infringement of a pre-existing trade mark.  The most effective business identity protection is a trade mark.

• Passing Off

  • What is passing off?

    • Passing off is the right to prevent someone unfairly using your business reputation.  A passing off claim can be made if someone uses an unregistered trade mark you own to promote their own business or product.

  • Is passing off as good as a registered trade mark?

    • No.  An important difference is that anyone claiming passing off must prove they have business reputation in the market place.  A registered trade mark holder doesn't have to have any profile in the market, for the trade mark to be protected.

• Intellectual Property Articles

  • Intellectual Property Strategy
  • Contracts and Misrepresentation
  • Intellectual Property Law Reforms
• Intellectual Property Links
  • Intellectual Property at IP Australia
  • Intellectual Property at wikipedia
  • US Australia Free Trade Agt Intellectual Property provisions
  • Intellectual Property for Business
  • Intellectual Property at Weblaw
  • Intellectual Property at Attorney General's Dept
  • Intellectual Property at IP Menu

   

Copyright Notice:  World Intellectual Property Rights Organization image distributed under GNU Free Documentation Licence and Creative Commons Licence 2.5.  Source:  http://commons.wikimedia.org/wiki/Image:WIPO3.JPG