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Intellectual Property law is the area of law that deals with Intellectual Property. Property is the phrase used to describe the rights associated with ownership of a material item, such a land or a vehicle. In contrast, Intellectual Property describes the rights associated with ownership of an intangible thing, such as an invention or an artistic work.
There are several types of Intellectual Property in Australia. Copyright is the right to prevent copying which arises in literal, artistic and musical works, as well as the objects which incorporate those works. Trademarks are marks used to differentiate a product or service from other products and services, most commonly being a logo or trade name. Patents are the grant of rights over an invention. Registered designs are the rights associated with registration of a specific industrial design or pattern. There are also statutory schemes that deal with specific niche market unsuited to traditional Intellectual Property, such as plant breeder rights and circuitry design.
It is important to note that whilst your Intellectual Property may be incorporated into a product, the Intellectual Property itself remains intangible. A simple example of this is a logo which has been trademarked. If that logo appears on a shirt, then the physical shirt incorporates that trademark. Consequently, producing or wearing that shirt could infringe upon the rights of the trademark owner. This conceptual separation is relatively straight forward for trademarks, but becomes far more complicated when dealing with patented inventions and, to a lessor extent, copyright.
An Intellectual Property lawyer is a lawyer who practices in the area of Intellectual Property law. The lawyer may specialise in one specific area of Intellectual Property, such as copyright or trademarks, although they most commonly will practice all major facets of Intellectual Property.
An Intellectual Property lawyer will assist their client by advising on their rights with respect to their potential Intellectual Property, including how to maintain confidentiality during the development of their Intellectual Property and how to best protect their Intellectual Property from infringement.
An Intellectual Property lawyer will also manage applications with IP Australia on their client’s behalf, including drafting and lodging the application and corresponding with IP Australia as necessary.
Intellectual Property lawyers also assist their clients in situations where another party is threatening to infringe, or has infringed, on the client’s Intellectual Property. The Intellectual Property lawyer will assist the client with drafting demands, negotiating the terms of settlement and, if necessary, initiating court proceedings to enforce the client’s rights.
Copyright is a type of Intellectual Property that deals with protection of expressions of ideas, such as artistic works, as well as the capture of those expressions of ideas, such as sound recordings and films.
If the product of your effort is a literary, dramatic, musical and artistic work then it will fall under Part III of the Copyright Act 1968 (Cth) as a “Work” (Work). If the product of your effort is a sound recording, film, television or sound broadcast or a publication, then it will fall under Part IV of the Copyright Act 1968 (Cth) as “Subject Matter other than Works” (Subject Matter).
To be protected as a Work, the expression must meet the following criteria:
If the expression of the idea meets the criteria for a Part III Work, the copyright subsists in that expression from the time of creation. The general rule is that the owner of the copyright in that expression is the author of that expression, although there are exceptions.
The copyright in a Work gives the owner the exclusive right to do the following acts:
A party, other than the owner of the copyright, which performs any of the acts protected by the copyright will be infringing upon that copyright.
The nature of the copyright in a Work is significantly different to that of a Subject Matter, with the Subject Matter receiving significantly less protection. The copyright in a Work is aimed at protecting the original ideas in that work, whilst the copyright in a Subject Matter is designed to protect the effort in capturing that subject matter in video or audio form; the former rewards originality whilst the latter rewards effort. A Subject Matter is only protected against direct copying or unauthorised distribution to the public.
Intellectual Property can be registered in Australia by making an application to IP Australia, the department of the federal government which oversees all Intellectual Property. The main exception to this rule is Copyright, which is naturally occurring upon creation and does not require any registration.
The application process is different for each type of Intellectual Property as each type has a distinct set of requirements that need to be met in order to qualify for registration. Each application will require payment of an application fee, which also varies for each type of Intellectual Property.
Most application are made electronically through IP Australia’s online eServices website, although physical forms can be printed and filed by post if necessary. It should be noted that using physical forms usually incurs a higher application fee.
After the application is filed and the application fee has been paid, IP Australia will assign an examiner to assess the application. Generally, the examiner will then issue a determination to either accept or deny the application for registration. This process can take anywhere from a few months to more than a year depending upon the type of application. As a general rule, trademark applications have the fastest processing times whilst patents are the slowest. If an examiner issues a positive determination, the applicant is required to accept the determination and, in some cases, pay a registration fee. IP Australia will register the Intellectual Property by issuing a certificate of registration and updating the respective register. After that point in time, the Intellectual Property is registered and entitled to protection within Australia.
It is important to note that Intellectual Property is regulated differently by each country using their own statutory schemes. Registration in one country will usually not entitle the holder of the Intellectual Property to protection in any other country. Accordingly, we always recommend seeking legal advice on how to protect your Intellectual Property in all of your target markets before initiating any formal applications.
