‘Nothing in life is to be feared. It is only to be understood.’ – Marie Curie
If you ask a child whether black and white are colours, they might say yes. However, if you ask a scientist the same question, the answer might be different. In fact, neither is technically incorrect. It’s just a matter of interpretation.
The laws that relate to intellectual property are not dissimilar, in that the answer to whether you own something or whether someone is infringing your rights must be decided on a case-by-case basis. The law is not cut and dry. This is repeatedly demonstrated by the fact that cases can go to court and receive one decision, only for that decision to be re-examined or reversed altogether on appeal to a higher court.
If you are creative and sell your ‘creativity’ in whatever shape or form, you need some level of understanding about the law so that you can not only protect yourself, but also avoid breaching the rights of others.
What is intellectual property?
'Intellectual property is the oil of the 21st century.' – Mark Getty, Chairman of Getty Images
As opposed to ‘real property’, which refers to land and anything attached to land such as a house or a building, ‘intellectual property’ (often referred to simply as IP) is a kind of personal property. Unlike other forms of personal property, such as cars and books, IP is intangible in nature and refers to property in the form of creative and intellectual effort.
There are seven main forms of intellectual property recognised in Australia:
1. copyright (for works)
2. trade marks (for brands)
3. designs (for the appearance of products)
4. patents (for inventions)
5. confidential information (to protect trade secrets and information not in the
6. plant breeder’s rights (to protect new varieties of plants)
7. circuit layout rights (to protect original layout designs for integrated circuits and computer chips).
The subject matter that can be protected by intellectual property law is vast, but can include: architectural plans; artworks; books; articles; blogs; manuscripts; literature and poetry; brands; compilations (e.g. anthologies, compendiums or databases); computer software; confidential information; craft works; fashion designs; films; illustrations and drawings; inventions; literature and poetry; music; performances; photographs; theatrical scripts; product designs; sculptures; trade secrets; customer lists and more.
In Australia, intellectual property is administered by a government agency called IP Australia. Its role is to grant rights pursuant to legislation relating to trade marks, patents, designs and plant breeder’s rights. Copyright, however, stands apart from these other rights. In Australia copyright protection arises automatically upon the creation of the work, so there is no need to register or ‘administer’ copyright.