What is Intellectual Property?
Anyone working in publishing needs to understand intellectual property law.
The term ‘intellectual property’ refers to intangible property that has come into existence through the intellectual and creative work of groups/organisations or individuals. It can also be described as the property of your mind – an invention, application of an idea, original design or trademark.
Intellectual property (IP) laws were developed to ensure that original work and inventions were not used and exploited by others - so as not to discourage original creative work. To gain legal ownership of intellectual property it is important to apply to get it formally registered; as creating original work does not guarantee automatic ownership of the rights to it (except for copyright and circuit layout rights which are automatic).
Registering IP in one country does not guarantee protection internationally – only within that particular country. For those wanting protection in countries outside their own, it is important to apply for it separately.
However, the advantage of registering intellectual property is that it serves as a warning to others not to copy and exploit original work, and it serves as proof of property ownership – although challenges can sometimes occur. But those choosing not to register their work are more likely to have to prove ownership by going to court and relying on common law, which can be an expensive and time-consuming process.
Intellectual property that is not protected by IP law is called ‘public domain’. IP is not protected by law once its term has expired. Expiry dates apply to most intellectual property (they can only be protected for a set time period), although some types of intellectual property (such as trademarks) can be renewed periodically and may have an infinite life.
Laws covering intellectual property are often abbreviated as ‘IP’ laws. These laws include coverage of:
- Confidential information (trade secrets)
Patent (pronounced ‘PAT-ent’)
A patent is a right granted to an individual or organisation to use, control, and exploit their invention or improvement of a device, substance, method or process, for a stipulated period of time. For something to be patented, it must be new (something that has not been known or used publicly), be something of use (have a degree of practical utility) and have come into existence as a result of inventive faculties.
IP laws provide the time limits which apply to patents (e.g. an Australian standard patent may last for twenty years). A patent is legally enforceable and provides good protection where it is expected that the invention will lead to a sizeable long-term gain. Once a patent application has been filed; the words ‘Pat. Pend’ may be used on the product to indicate there is a patent pending and protection will apply from the date of application (assuming the patent is granted).
Once a patent is granted, the owner has the sole right to use, sell, make, or license/assign rights to others to use the invention.
The unauthorised or unfair use of a patent is termed ‘patent infringement’.
A trademark is any word, name, phrase, symbol, logo, picture, shape, smell, sound, aspect of packaging or any combination of these, used to distinguish a person’s goods or services from others. For example, the name Coca-Cola (type of soft drink) is a registered trademark. A trademark gives the owner the sole legal right to use, sell or license it; in the country in which it is registered.
Trademarks do not have to be registered. If a person or organisation creates an original trademark which they use regularly and clearly to identify their goods or services, it may be able to be protected under law - regardless of whether it has been registered or not.
But registration of a trademark gives clearer ownership and sends a warning to others not to use it without permission. To protect a trademark, a registration application can be filed with the Trade Marks Office in your country. Having a registered trademark can significantly reduce the likelihood of costly and time-consuming court cases to establish ownership.
It is important to understand that even a registered trademark may not be protected if it is misused or not used.
Once a trademark has been applied for, the relevant word or logo etc, may use the symbol ™ after it.
The symbol ™ means ‘trademark pending’, indicating a trademark application has been filed and is currently being assessed. Once the trademark application has been formerly assessed and meets all legal requirements, it will be approved, and the owner may then use the ® symbol to indicate official registration. The symbol ® means the trademark is actually registered.
Copyright law prevents a person or organisation copying the work of another without permission. A copyright is the exclusive right of an author or artist to have complete control over the reproduction of his or her work for a set period of time. Copyright law protects original works of literature (scripts, articles, novels etc), art, films, music, sound recording, broadcasts, and computer programs from being reproduced by anyone other than the creator.
Copyright does not protect ideas. It only protects the original expression of information and ideas. For example: the news is not protected. However, the way in the news was written is protected. One newspaper may copy the idea for a news story, but cannot copy another publication’s news report verbatim. The particular way in which a news item is expressed is protected – but not the news or idea itself.
Copyright does not always need to be registered. Check your country for specific laws. For example, in Australia, original works are protected automatically from the first time they are written or created in other artistic forms. Therefore there is no need to register them – nor can they be registered.
Regardless of whether a work has been published or not, copyright for literary and artistic works has an expiry date which may be generally around 70 years from the author/artist’s death or from the first publication (depending on which country you live in).
Attaching a copyright notice to original works is not usually necessary; however, it may help deter potential infringers.
In many countries, item designs can be registered to protect new and distinctive shapes, patterns, configurations or ornamentations – anything which gives the product an original ‘look’. Design registrations are restricted to designs of products which are used industrially or commercially.
Confidential information (trade secrets)
A trade secret is business information about an original valuable procedure or formula that has been kept a secret by a particular business operator, and only revealed to others in confidence.
Businesses often require employees and contractors to sign written confidentiality agreements in order to protect their trade secrets. Breach of confidentiality can result in a lawsuit. Businesses are entitled to protection of their trade secrets under common law.
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