As a business owner, it’s crucial to realise that your most valuable asset may be your intellectual property. As such, ensuring you are properly protected is vital to the success of your company.
What is intellectual property (IP)?
Intellectual property refers to non-physical creations that are the result of your intellectual creativity. IP rights give you the chance to commercialise your creation and subsequently, profit off it. It is important to note that the creator of the intellectual property is not necessarily the sole owner. Through contractual agreements, IP can also be jointly owned in conjunction with your employees, manufacturers, distributors, or suppliers.
Rights to IP exist in multiple forms, and while you will usually need to formally register your IP, there are instances where you may be granted automatic protection.
Type of intellectual property
Depending on your IP, you may register for varying forms of protection that best suit your needs. Common forms of protection include:
Copyright covers the physical manifestation of your idea including (but not limited to) drawings, publications, art, music, film, electronic programs, and broadcasts. Within Australia, the moment you document an idea or creative concept, it becomes automatically protected by copyright.
This protection is granted under the Copyright Act 1968, and prevents others from copying, performing, broadcasting, publishing or adapting your work. It is intended to protect the expression of your idea, however does not protect the idea itself. As such, another party could create a work of a similar nature or based on the same idea. Generally speaking, in Australia, copyright lasts 70 years from the year of the creator’s death (for written or drawn works), and 70 years after publication or broadcast for sound recordings and films.
Patents are usually used for inventions, and give you the exclusive commercial rights (for the term of the patent) to sell, hire or use your invention for profit, or give license for others to do so. According to IP Australia, in order to qualify for patent protection, your invention must be a “device, substance, method or process that is new, inventive and useful.”
The duration of protection will vary depending on the type of patent you hold. For example, innovation patents last for up to eight years, standard patents last for up to 20 years, and pharmaceutical patents can last for up to 25 years.
If you choose not to patent your invention, this may leave you open to the risk of someone reverse-engineering your product to make something similar, or a competitor discovering your invention through espionage.
If your IP refers to the features which give a product a new, distinct and unique appearance, you may wish to consider design registration as per the Designs Act 2003. Typically, this is used for the protection of design packaging and clothing, but can also be used for other products such as electronics, sporting equipment, vehicles and tools. By registering your design, you receive exclusive commercial rights to sell, use or license your designs for up to ten years.
Design registration and copyright can sometimes overlap. For example, if you have created a two-dimensional design, it may quality for protection under both the Copyright Act and Designs Act. However, if your design has been applied to a three-dimensional product (eg. product packaging), you may not be eligible for copyright protection.
Trade marks are a form of brand protection which identify a unique product/service and distinguishes you from your competitors. They are useful marketing tools that allow you to promote the unique aspects of your business. That said, business owners must recognise that trade marks do not apply to “just” your logo or business name. In fact, they can apply to letters, numbers, phrases, smells, pictures, packaging, or any combination of these. Once you have applied for a trade mark, you will receive exclusive rights to license, use and sell the mark. Business owners should note that simply registered your business name, company or domain name does not automatically grant you protection.
Once registered, your trade mark can be renewed indefinitely. However, you must continue to actively use the trade mark in your business. Failure to do so can lead to your trade mark being removed on the grounds of non-use.
You may also have heard of trade secrets. These are different from trade marks and cannot be registered. In the instance of a trade secret, the burden is on you to protect this knowledge.
Steps to protect your IP
When protecting your IP, you must first identify the intellectual property and the type of protection that will best suit your needs.
One area in which we would specifically recommend your immediate attention is in relation to the terms of your employment contracts with employees whose role involves the development of new ideas of value to the business. You should always have a term in your employment contracts which specifically declare all inventions and new ideas developed by each employee is automatically the property of the company, and not of the employee concerned.
The protection of your intellectual property is a crucial step that every business owner must take, however it’s important that you choose the right sort of protection for your IP. Get in touch with the team at AV Lawyers to discover the best way to safeguard your most valuable asset.