Chapter 6: Intellectual property

6.1 Forms of intellectual property

Intellectual property is a term that covers a range of legal rights for the protection of creative effort, particularly the protection of economic investment in that creative effort.¹

Intellectual property rights can be bought, sold, leased and dealt with like any other form of property such as land and goods.²

One of these rights is the right to prevent other people using the ideas or inventions.

Ownership bestows on the owner:

exclusive rights to make, use or sell the property
the right to assign, transfer, waive rights, license, donate etc
entitlement to registration where applicable
legal rights to protect property or to seek damages for improper use
exclusive ability to control development of the intellectual property
liability for ownership, including taxation, legal action in negligence etc.

6.1.1 Copyright ³

Copyright protects against unauthorised copying: IT DOES NOT PROTECT IDEAS. Copyright protection also extends to adaptations, translations, abridgements, broadcasting and performance.

Unlike other kinds of intellectual property, copyright protection arises automatically when a work is created. Registration is not required in Australia as is the case for other types of intellectual property such as patents. Generally speaking, copyright lasts for the lifetime of the creator plus 70 years.

Some activities within universities which lead to the creation of copyright include:

the writing of books and articles, theses, computer software, dramatic works and manuals
composing music
making an original video recording, DVD, CD-ROM or film
creating a work of art
designing a questionnaire or form

6.1.2 Patents

Activities which can lead to the creation of patent rights include, for example:

creating a new product or process
creating a new drug
developing aspects of a particular technology
developing a genetically modified plant, animal or micro organism.

To secure patent rights, an application must be made to the Patent Office usually before any publication of the ideas for which patent protection is sought.

6.1.3 Designs

The creation of a new design that can be used to give shape to a three-dimensional mass-produced article may possibly be registered under the Designs Act.

So if a new machine is developed in a university department, it may lead to both patent and design rights. It should be noted that design rights protect only the appearance of the article, not the way they function.

Designs consisting solely of features of two-dimensional pattern or ornamentation may also be registered. However, registration will only be necessary if the design is to be applied industrially as designs that ornament an article are also protected under copyright.

6.1.4 Trade marks

The marketing of products and the provision of services may lead to the development of names or logos associated with those products or services. Some trademarks may be registrable.

6.1.5 Circuit layouts

The layout of integrated circuits is protected without the need for registration by the Circuit Layout Act.

6.1.6 Plant variety rights

The breeding or genetic engineering of a new strain of certain types of plant (for example, a disease-resistant species) will allow the breeder to register the new plant under the Plant Varieties Act.

6.1.7 Trade secrets

Confidential information is a type of intellectual property and the courts will protect it, commonly under a confidentiality or non-disclosure agreement. Often confidential information is created concurrently with some of the other rights above but usually consists of ideas or know-how, which cannot be registered in the same way as other forms of intellectual property.

¹ AVCC Ownership of Intellectual Property in Universities: A Discussion Paper, AVCC, 2002 page 2.

² Ricketson S, Intellectual Property Rights in the Australian University Context: An Overview, December 1992, Discussion paper presented to Monash Research Graduate School.

³ Australian Copyright Council website: www.copyright.org.au.