Types of Intellectual Property in Australia
In Australia there are nine types of intellectual property and quasi-intellectual property.
Copyright protects creative endeavours such as literary works, plays, artistic works and musical works as well as films, sound recordings and television and radio broadcasts.
Not all copying is copyright infringement. There are many exceptions which allow unauthorised copying, for example for research and study, reporting the news, parody and satire and backing up computer programs. However, these exceptions have conditions that must be complied with if the exception is to apply.
There is no copyright registration in Australia, although registration exists in some countries.
Trade marks are used by business to identify the business or its goods or services and differentiate them from the business, goods or services of other businesses. In Australia trade marks can be registered for so long as the trade mark is used.
Trade marks can be words, logos or part of packaging and even shapes, colours and scents.
A special type of trade mark is the certification mark, which indicates to consumers that the goods or services meet a particular standard, such as the WOOLMARK.
Patents protect new inventions in a wide range of areas, for example pharmaceuticals, engineering and genetically manipulated organisms. Patents are registered. A patent gives the owner the exclusive right to exploit the invention in Australia.
A patent attorney prepares the application and prosecutes it before the Patents Office. Patent attorneys are a different profession to lawyers (although some patent attorneys also have legal qualifications).
Design registration protects the appearance of products.
Plant breeders’ rights (PBR)
Plant breeders who develop new plant varieties can register the plant variety.
Circuit Layouts (EL)
Protection is provided for certain circuit layouts (known as eligible layouts). EL rights include the exclusive right to make an integrated circuit in accordance with the layout and exploit the layout commercially in Australia. There is no registration for EL rights in Australia.
The action for passing off gives a business the right to prevent another business from passing itself, or its goods or services, as those of first business. Passing off is not a registered right but, unlike trade mark registration, the business owner must prove that it has a reputation in the name, trade mark or get up in order to succeed.
Geographical indications (GI)
There are two types in Australia:
- Australian and foreign geographical indications for wine registered under the Wine Australia Act 2013; and
- Certification trade marks registered under the Trade Marks Act 1995 – which can relate to any goods or services (see above).
A GI registered under the Wine Australia Act identifies the wine as coming from a country, region or locality that gives the wine a particular quality, reputation or characteristic (for example, “South Australia”, “Yarra Valley” or “Champagne”).
In Australia, confidential information is not a type of property – so that it is not strictly intellectual property. However, it is sometimes used as an alternative to registering an invention or plant variety – for example using a secret method to make a product. It can also protect confidential documents stolen by an ex-employee. (There may also be copyright in the stolen documents.)
However, protection depends on keeping the information secret. Once the information becomes public through the actions of the owner, all protection is lost.