People often talk about the importance of their intellectual property, or IP of their company. However, few people have a true understanding of the legal meaning of IP rights.

Does the law protect ideas?

Intellectual property consists of the legal categories of trademark, design, copyright and patent. A fundamental principle of intellectual property law is that ideas are not intellectual property. If you come up with a clever idea, you cannot stop anybody else copying it, unless you can protect it under one of the legal categories referred to above. Each of those categories is explained below, in broad terms. We can provide more detail if required and there is more detail on our website.

The term “intellectual property” is a very attractive expression, as “intellectual” implies intelligence, and “property” implies the ownership of something of substance. So, it is fashionable to speak about owning IP, even though such ownership may be an illusion.

Copyright

Every time you create an original work whether it is something you have written, a painting, a drawing, a piece of music, a photo you have taken or even a musical performance, you own the copyright. Under Australian law, there is no requirement for registration of copyright. As soon as the original work is created, the creator owns the copyright.

So, if you come up with an original idea, such as the design of a training course, and write it down, you own the copyright. However, another person could read what you have written then write their own original work, based on your idea, without infringing your copyright.

Patents

A patent is the way something works, for example, a mousetrap. Unlike copyright, it is necessary to register the patent in order to obtain protection. This is a highly technical field, and there are firms who work in this area exclusively, known as patent attorneys.

Owning a patent prevents anybody else from using a device which works in substantially the same way. Accordingly, patents can be very valuable.

Since the explosion of the IT industry, the legal position with regard to patents of IT has become somewhat confused. At the start of the IT explosion, many patents were granted for various functions carried out by computerised systems. It has now become harder to convince the authorities that the original IT function you have invented can obtain patent protection.

Trademark

This refers to the brand or logo under which a business provides goods or services.

A registered trademark can be very valuable, as it prevents anyone else from carrying on the same type of business with the same or similar name or logo. Despite this, most small businesses ignore the value of registering a trademark believing that their registered company name is sufficient. However, each company name is associated with a 9 digit ACN, or 11 digit ABN. The corporate regulator, ASIC will allow registration of other company names very similar to existing company names, as it takes the view that the ACN or ABN of the existing company gives its name its uniqueness.

Design

Design refers to the shape of an object such as a chair or a fibreglass swimming pool. The design can be registered, provided that it is unique, and the registration will prevent anybody else from producing an object with substantially the same shape. However, the law requires that the design must be registered before the products begin to be marketed. Once you market a product, it is too late to register the design.

Conclusion

When somebody tells you that they own valuable IP, you may be left wondering whether they really do own something of value.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9923 2321 or email enquiries@somervillelegal.com.au.

For more information  contact Tim Somerville  or Andrew Somerville on (02) 9923 2321.