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: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

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What is intellectual property?

Intellectual Property is an intangible asset which arises when a creative work is produced and can be protected in a number of ways, depending upon the nature of the creative work. Rights which can arise from intellectual property include copyright; patents; trade marks; designs; circuit layouts and confidential information.

The chart on the reverse side of this brochure details the protection available for intellectual property.

If you are the owner of the intellectual property rights, you can take action against a person or corporate/government entity if your creative work is copied and/or used without your permission.

Intellectual property can be a valuable asset so you should take steps to minimise the chance of infringement occurring. If allowing others to use your work, a licensing agreement should be used which limits their rights to use the work; an employer should ensure that all employees sign an assignment of intellectual property rights agreement and a confidentiality agreement; when discussing an invention or idea, ask the other parties to sign a confidentiality agreement.

Australian Intellectual Property Protection

ProtectionDescriptionDuration of Protection
CopyrightCopyright protects works such as: paintings; sculptures; drawings; engravings; photographs; buildings or a model of a building; films; computer programs; dramatic works; books; and sound recordings. The copyright owner has the exclusive right to broadcast; communicate, copy; license; import; perform; publish, adapt and translate the work.

Copyright automatically arises upon creation of the work
Depending on the material, copyright for literary, dramatic, musical and artistic works generally lasts 70 years from the year of the author's death or from the year of first publication after the author's death.

Copyright for films and sound recordings lasts 70 years from their publication and for broadcasts, 70 years from the year in which they were made.
Registered Trade MarksAlthough trade marks do not need to be registered, there is additional protection available if they are. A trade mark may be a letter; word; name; signature; numeral; device; brand; heading; label; ticket; aspect of packaging; shape; colour; sound; or scent or a combination of any of these which is used to distinguish the goods or services provided in the course of trade by one business, from those provided by another.

By registering a trade mark, you obtain the rights to the exclusive use and/or control of the use of the trade mark for the classes of goods and services for which it is registered.

To enforce your rights in an unregistered trade mark, you may take an action against the infringing party for “passing off” their goods and/or services as your own or for a breach of the Trade Practices Act 1974 (Cth) or corresponding state legislation. This can be more costly and expensive than taking action for infringement of a registered trade mark.
The initial term lasts for ten (10) years and must be renewed every ten (10) years for continuing protection.
Registered DesignsDesign refers to the features of shape, configuration, pattern or ornamentation which, when applied to a product, gives the product a unique appearance. Design registration is intended to protect designs which have an industrial or commercial use. Designs which are essentially artistic works are covered by copyright legislation and are not eligible for design registration. The protection you receive is only for the visual appearance of manufactured products, not how it works.

A design must be new and distinctive for it to be registered.
Once a registered design is examined and certified, you have the exclusive and legally enforceable right to use, license or sell your design.
Registration initially protects your design for five years. You can then renew the registration for a further five years.
PatentA patent requires full public disclosure of an invention of a product or process and gives the owner the exclusive right to manufacture; license; sell; import; and use an invention.

The invention must be commercially useful and novel.

An innovation patent is usually quicker, cheaper and easier to obtain but the protection is limited and of shorter duration.
Standard patent - twenty (20) years from the date of filing the application.

Innovation patent - lasts a maximum of 8 years.
Confidential InformationDoes not have to be registered and arises when information is disclosed in confidence to another party. Can be used to protect ideas, trade secrets, know-how. Protection arises automatically when an obligation of confidentiality arises such as a employer/employee relationship or when an agreement to keep information confidential is made.

It can be difficult to enforce your rights when there is a breach of confidence in comparison with enforcing your rights following an infringement of other intellectual property rights.
The protection continues until the information becomes part of the public domain or is no longer considered confidential by the originating party.
Circuit LayoutsProtection for circuit layouts used for building an integrated circuit or computer chip arises automatically provided that the layout is original. The owner of the circuit layout has the exclusive right to copy; manufacture; sell; and distribute circuits using the layout.If the layout is not used commercially, ten (10) years from the date the layout was first made. If the layout is used commercially, within ten (10) years of the date on which it was first made, protection continues for ten (10) years from the date the layout is first commercially exploited.
Registered Plant Breeders’ RightsThis protection protects new varieties of plants and fungi. The owner has the exclusive right to produce; reproduce; sell; import; export; or license the plant or fungi variety provided that the variety is distinct; stable and uniform.Trees and vines - Twenty-five (25) years
Other varieties - Twenty (20) years

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  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au