White SW Computer Law
|Intellectual Property, Information Technology & Telecommunications Lawyers|
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: firstname.lastname@example.org Internet: http://www.computerlaw.com.au
An obligation to keep information confidential does not arise solely from the nature of the subject material but also from the method of disclosure.
Confidential information has similar protection as for other intellectual property rights such as copyright. It is protected regardless of whether you have a written contract or not.
You will ensure far greater protection by having a signed confidentiality agreement which can be customised to your particular circumstances.
If the confidential information is in the form of a literary work, eg a report or computer program, it may also have protection from the laws governing copyright.
The principles of obligations of confidence may not be protected in other counties. Some countries may have laws which prevent the creation of obligations of confidence.
This is an important consideration when entering into business negotiations in which confidential information is to be released.
Once an idea becomes public knowledge, it is difficult to control the use of the idea by other parties.
It must be relatively secret. A common test for relative secrecy is when the information is available to the public and whether the public would have difficulty in acquiring the information except by unlawful means.
The information must be disclosed in circumstances which would indicate that it is to be treated as confidential, for example, marked commercial in confidence.
Before disclosing any confidential information to parties such as manufacturers, you should get acknowledgment in writing that you (the inventor) own all rights in the invention and that the information being disclosed is confidential and is to be used for the purpose of negotiations only.
There have been many cases where production of a very similar product has begun after negotiations with the inventor have ceased.
Employees are bound not to disclose any confidential information they have access to unless permitted by their employer. However, it is easier to discourage such disclosures rather than recover from the damage caused from a disclosure.
Do you have a protection plan for your business including the following points?
A confidentiality agreement should be tailored to suit your particular circumstances, but the following issues amongst other things should be considered:
This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquires and seek appropriate legal advice.