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WHAT IS IP AND HOW TO PROTECT IT Featured
26 March 2019 Posted by 

WHAT IS IP AND HOW TO PROTECT IT

Guide to business protection
MANI SHISHINEH
AUSTRALIAN law provides a raft of protections for intellectual property, including patents for designs or inventions, copyright, trademarks, domain names, confidential information and trade secrets.
Australia’s intellectual property laws also meet international trade and treaty obligation and have also been amended in the light of various free trade agreements.
 
Australia’s intellectual property laws also address the enormous developments in technology and the internet in recent years, primarily through provisions of the Copyright Act 1968 (Cth). In this short article we will review some of the more relevant areas of intellectual property and how you can protect yours.
 
Copyright
 
Copyright is your exclusive right to reproduce, publish, perform, communicate and adapt original literary (including computer programs), artistic, dramatic and musical works, together with other protected subject matter such as films and sound recordings. 
 
Australia’s copyright laws also provide for the protection of moral rights, which give authors both the right of attribution and the right to have copyrighted works treated with integrity.
 
Copyright comes to being automatically on creation of a work and generally continues for 70 years after the death of the author. Australia is a member of the various international conventions on copyright and so affords reciprocal protection for copyright recognised in other member countries.
 
The Copyright Act has been through several amendments to address copyright issues arising in the ‘internet age’ and as a result:
 
Offers protection for copyright owners from the unauthorized digitisation of their works and unauthorised communication of their works over the internet and other electronic means
limits the liability of internet service providers and software manufacturers for copyright infringement by users of their facilities and software, and
prohibits the making, sale, distribution and use of circumvention devices for the purpose of circumventing a technological protection measure.
 
Prohibition of unauthorised imports is subject to significant exceptions. The Copyright Act permits the parallel importation of overseas published books and sound recordings, as well as, more recently, electronic literary and music items and computer software.
 
Patents
 
A standard patent confers on the patentee the exclusive right to exploit commercially the patented invention for a term of 20 years. Recent legislative changes have aligned Australia’s criteria of patentability for standard patents more closely with international standards. 
 
Several patent law reviews are also currently underway, including whether the threshold for patentability should be raised for innovation patents to the same level as standard patents.
 
For the patent to confer such rights, the invention must be detailed in a specification (which may be provisional, later followed by a complete specification) describing the invention and concluding with claims that determine the ambit of the monopoly afforded by the patent.
 
The invention must be novel and amount to a manner of manufacture as that phrase is understood. The invention must also involve either an inventive step (for a standard patent) or an innovative step (for an innovation patent). 
 
The specification must be clear and not ambiguous and the claims fully supported by the information disclosed in the specification.
 
Trade names and trade marks
 
Australia protects reputation and goodwill in names through consumer protection laws that prohibit misleading commercial conduct.
 
In addition, Australia has a registered trade mark system for names, logos, devices, sounds, smells, colours and shapes that distinguish the goods or services of an owner from those of other owners.
 
Australia follows the international system of classification of goods and services. Early trade mark registration is desirable for those wanting to enter the Australian market. Australia also has a federal system for registering business names for persons carrying on business under a name other than their own name or company name.
 
Domain names
 
Various classes of domain names ending in .au may be registered. Domain names ending in .com.au and .com are the most popular as addresses for commercial entities operating in Australia.
 
For a .com.au domain name, a substantial and close connection must exist between the commercial entity and that entity’s domain name, which can be demonstrated by reference to the trade marks, ‘nicknames’ or acronyms of an entity not just its company or business name.
 
Registration of a .com.au domain name does not create any proprietary rights in the name. Australian courts have, however, recognised rights in domain names where there can be demonstrated a reputation or goodwill in the name.
 
Trade secrets and confidential information
 
Both through contract and where information is imparted in confidential circumstances for a limited purpose, effective protection can be provided for technical know-how, customer lists and other confidential information against disclosure and use for an unauthorised purpose.
 
Mani Shishineh is principal solicitor at Legalbit. Visit  www.legalbit.com.au
 


editor

Michael Walls
Publisher
P: 0407 783 413
E: Michael@accessnews.com.au

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