Is copyright protection sufficient for my new product?

Now you have developed a brand new product – and you are prudent enough to mark the product with the words “Copyright 2012 – All rights reserved” – but then you wonder, “Is this really enough to protect my new product from someone who tries to copy it?”

It is true that the Copyright Act 1968 (Cth) gives automatic copyright protections of the broad categories of materials that fall within the meaning of “artistic works”.  They can be “paintings, sculptures, drawings, engravings and photographs”, “building and models of buildings” and “works of artistic craftsmanship”.  Engineering and design drawings, architectural plans, models and design prototypes can fall within these categories, and can therefore be protected by copyright even though they exist purely for utilitarian purposes.  However, the Copyright Act contains provisions that are intended to prevent dual protection under designs and copyright law.  Therefore, where something is, or could be, registered as a design, and is intended to be mass-produced, then the protection under the copyright law is very limited.

Under the Designs Act 2003 (Cth), a design is defined as “the overall appearance of a product, which includes the shape. configuration, pattern and ornamentation which, when applied to the product, give it a unique appearance”.  Therefore, the protection of “design” under the Designs Act is not confined to the visual designs of items, such as clothing, furniture, ornaments or jewelleries.  The protection extends to more purely functional articles in an item, such as, industrial parts, that are embodied in an item.

In many cases, if you need a protection for functional or mass-produced items which are “industrially applied”, you will need to consider registration of the design under the Designs Act.  A design will be taken to have been applied “industrially” if it has been applied to more than 50 articles.

On the other hand, you will generally be able to rely on copyright protection, if your design is a two-dimensional design, or a “work of artistic craftsmanship”, which has both aesthetic appeal and craftsmanship, or a design for an item that you have not yet made commercially available.

While the process of registration of a design is relatively simple, the interaction between design and copyright law is complex.  If you are intending to commercialise your new product you should obtain specific legal advice on how to protect it as early as possible.  Once you start marketing the product, or even start manufacturing the parts for the product, it may be too late.

For further information regarding your IP asset, contact Peter Murphy:

p: 6206 1300 | e:  info@elringtons.com.au

Protection of Intellectual Property as an Asset of your Business

Traditionally, the intangible value adding factors to a business, such as ideas, knowledge and innovations, were perceived as something so vague that should only be collectively included in the “good will” of the business.

In the era of modern technology, “Intellectual Property” (IP) has been increasingly recognised as having a separate and discrete value to the business.

These ideas, knowledge and innovations can be recognised as valuable business assets.  Given that IP rights can be sold, assigned and licensed, it is understandable that they should be given an ascertainable value and be protected.  The value only remains where those “ideas, knowledge and innovations” are properly protected – no one pays for something that everyone can get for free.

IP can be protected in number of different ways.

“Registered IP”, such as trade marks, patents, designs or plant breeder’s rights, require registration at IP Australia.  “Unregistered IP”, copyright in Australia, vests automatically in “literary works”.  This extends to cover music, novels, artworks and computer programs.  For an IP to be registered, the IP must satisfy certain criteria under legislation.  This gives it certainty.  Copyright subsists automatically in every literary work at the time of its creation.  While it is not required or has little legal effect, it is common that an author to mark his/her original work with the words such as “copyright 2012-All rights reserved”.

There are traps for the unwary. Copyright only protects the expression in the document.  It does not protect the ideas behind the original work.  If the ideas, process or concept behind the product are more valuable, then they must be protected separately by a patent.

In some cases, your ‘IP’ is better protected by other forms of legal protection.  For example by a confidential agreement.  This is particularly relevant in the context of employment.  Your ‘trade secrets’ can be protected by a properly drafted employment contract and/or a confidentiality agreement at the beginning of a certain project.

You may want protection for the name of your business, a product name or a brand name.  Consider a trade mark registration.  However, again, in order to register a trade mark.  Trade marks are names, words, logos or a combination of these that may be more unusual such as colours, smells or shapes. Trade marks are to distinguish products or services of one business from another.  Not everything can be registered as a trade mark and there are rules to be complied with.

To protect your business name, there are several forms of protection available.  The simplest ones are company name and business name registrations.  If you are intending to protect the “name” itself rather than a logo or images, then it may be more suitable to have it registered in this way.

While many forms of IP protection are available, choosing a right mode of protection for your “IP asset” is somewhat tricky.  In order to protect your IP asset, it is crucial that you consult with your lawyer before marketing your new product.

For further information regarding your IP asset, contact Peter Murphy:

p: 6206 1300 | e:  info@elringtons.com.au