Intellectual property is commonly referred to as IP. IP is essentially creations from the mind.
There are various types of IP, the main types being trade marks, copyright, moral rights, confidential information/trade secrets, designs and patents. Some less common types of IP include plant breeders rights and circuit layout rights.
Trade Marks
Trade marks are anything that identifies the trade source of products or services.
They include brands, logos, slogans and catchphrases. Trade marks can even include shapes, sounds, smells, colours and movement. A famous example of a shape mark is the Coca Cola bottle.
In order to have trade mark rights, the trade mark needs to be distinctive of your business. It is generally not possible to get rights in descriptive names unless combined with other distinctive elements, such as a logo or distinctive words.
Copyright
Copyright is a collection of exclusive rights that vest in certain types of creative work.
The type of material in which copyright vests includes, for example, written material, films/videos, music, sound recordings, photographs, paintings, sculptures, drawings, technical drawings/designs, software, choreography, plays and some databases.
A single item can contain more than one element that is protected by copyright. For example a video recording of a performer singing a song will have copyright in the song lyrics, the musical score, the video recording, any choreography, among other things. Each of these is protected by copyright.
The exclusive rights granted by copyright vary depending on the nature of the material. In general they include the exclusive right to copy the material, to publish the material and to make various other uses of it.
In Australia, copyright protection is automatic. You don’t have to apply to register your copyright.
Copyright protection generally lasts for 70 years though the date from which that 70 years is calculated varies depending on the nature of the right. For example, where duration of protection depends on publication, protection is for 70 years from the date of publication. Otherwise it is generally the life of the author plus 70 years.
The owner of copyright is usually the person who created the material. There are some exceptions to this such as where the person is an employee and the material is created as part of their employment, in which case the employer will own the copyright.
Moral Rights
Moral rights are granted under the Copyright Act 1969 (Cth) to the creator of material in which copyright subsists.
Unlike copyright, moral rights are non-transferrable. They will always vest in the creator. As a result, a person may have moral rights in material but not own the copyright.
Moral rights are the right of attribution of authorship, the right against false attribution of authorship and the rights not to have a work subjected to derogatory treatment.
Confidential Information/Trade Secrets
Any information that is not known publicly is confidential information.
For a business this can include customer lists, marketing plans, internal business processes or even recipes or formula for products. Business ideas that have not been openly discussed can also be considered confidential information.
There is no registration process for confidential information or trade secrets.
Designs
Designs are the overall appearance of a product. While some designs can be protected by copyright, where a three dimensional design is in industrial or commercial use copyright protection no longer applies. In order to be protected, such designs need to be registered.
Designs that are new, distinctive and have not been publicly disclosed can be registered. Design registration protects the design for an initial period of 5 years that is renewable up to 10 years.
The area of design/copyright overlap can be complicated so getting advice is recommended.
Patents
Inventions that are new, inventive and useful can often be protected through patent registration.
There are two types of patent registration available in Australia, innovation patent and standard patent. The term of protection is 8 or 20 years respectively. The process is complicated and advice is recommended.
It is important to be aware that once an invention has been publicly disclosed it is no longer able to be protected through patent registration.
Rouse Lawyers does not draft patent applications. You are best to contact a patent attorney if you believe you have a patentable invention.
