What are the types of intellectual property in Australia?

An Overview on Intellectual Property in Australia

In Australia, intellectual property is an important asset that distinguishes your business from your competitors. Further, in an interconnected world that regularly engages with technology, science, and knowledge-intensive industries, the topic of intellectual property is highly relevant.

In this article, we address the common questions that local Australian businesses may ask about intellectual property:

How is intellectual property defined?

Intellectual property is an asset. Unlike a car or furniture, intellectual property is intangible and cannot be touched. This is known as an intangible asset. There is no clear definition on intellectual property, however they do share common characteristics. Generally, those characteristics include:

  • intangible value; and
  • independent intellectual effort.

Some simple examples include:

  • a logo;
  • a business name;
  • a design;
  • a recipe.

Why intellectual property is important?

When building an asset protection strategy for your business, and developing your business for the long term, some legal issues on intellectual property may involve:

  • which part of your business involves or relies on intellectual property;
  • what legal steps and procedure should you to adopt to protect your intellectual property; and
  • how to maximise your tangible and non-tangible assets to give you the best commercial outcome.

What are the types of intellectual property?

The commonly recognised categories of intellectual property are: Trade Mark, Copyright, Patent, and Confidential Information.

What is a Trade Mark?

A “trade mark” is a mark – a sign, that represents your trade, or your business. A trade mark shows your distinct branding to distinguish your goods or services from those of another.  Particularly, the Trade Marks Act 1995 (Cth) prescribes a statutory meaning to a trade mark as:

A trade mark is a signed used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.

In Australia, a person can register a trade mark with the Registrar of Trade Marks at “IP Australia”. The Registrar of Trade Marks is a statutory function vested with powers under the Trade Marks Act 1995 (Cth).

While registration is not necessary to claim rights over a trade mark brand, it helps to ensure a brand’s protection is available for all to see and much easier to enforce if someone tries to misuse it. Those legal protections include having exclusive rights to use the trade mark and to authorise other persons to use the trade mark in relation to goods or services that the trade mark is registered.

Further, the Trade Marks Act 1995 (Cth) also prescribes when a registered trade mark may be infringed by another use. Relevantly, conduct that may amount to infringement of a registered trade mark include:

SummaryType of Infringement
Same Description as to Goods or ServicesInfringement may arise if there is use of goods or services, that is substantially identical with or deceptively similar to, goods or services of the same description in respect of which a trade mark is registered.
Closely Related as to Goods or ServicesInfringement may arise if there is use of goods or services, that is substantially identical with or deceptively similar to, goods or services that is closely related to registered goods or services.

Copyright is a legal right that is not registered in any database unlike trade marks but is able to be protected. Copyright is also regulated by the Copyright Act 1968 (Cth).

Generally, copyright arises automatically for: 

  • works (including literary, dramatic, musical, artistic works, or a cinematograph film); and
  • other subject matters (including film, sound recording, broadcast or published editions).

Each component or part that either make works, or other subject matter are also given statutory meaning within the Copyright Act 1968 (Cth). In broad terms, each work, is provided a brief description:

Types of CopyrightSummary of Copyright
WorkWork means a literary, dramatic, musical, or artistic work.
Literary WorkLiterary works includes: a table, or compilation, expressed in words, figures or symbols; and a computer program or compilation of computer programs.
Dramatic WorkDramatic work includes a choreographic show, and a scenario or script for a cinematograph film. However, the definition does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.
Musical WorkMusical work is viewed as an abstract concept and is not defined in the Copyright Act 1968 (Vic).
Artistic WorkArtistic work means:
(a) a painting sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
(b)a building or a model of a building, whether the building or model is of artistic quality or not;
(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b).

However, artistic work does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.
Other Subject MattersThe statutory meaning of Other Subject Matters is implied by Part IV of the Copyright Act 1968 (Vic). This includes, Cinematograph Film, Sound Recording, Broadcast, and Published Edition
Cinematograph FilmCinematograph Film means the aggregate of the visual images and embodied in an article or thing so as to be capable by use of that article or thing:
(a) of being shown as a moving picture; or
(b) of being embodied in another article or thing by the use of which it can be so shown;
and includes, the aggregate of the sounds embodied in a sound-track associated with such images.
Sound RecordingSound recording means the aggregate of the sounds embodied in a record.
BroadcastThe term, broadcasting, has a broad application in the Copyright Act 1968.
Published EditionThe meaning of published edition is obtainable through common law principles relating to intellectual property law.

Given the broad nature in the statutory definitions, to investigate whether a particular copyright applies, and to resolve issues on the application of copyright law will largely depend on the application of legal principles in intellectual property..

For example, if you are the author of a published book, copyright of the literary work within that book almost always arises.

What is a Patent?

A patent is a legal right to a patentable invention that is disclosed to the public. Generally, a patent is also regulated by the Patents Act 1990 (Cth). For a patent to be obtained for a manufactured product or idea, the product or idea:

  • should be a ‘manner of manufacture’, that is, something that provides a material advantage in a field of economic endeavour;
  • be novel;
  • involve an inventive step;
  • useful; and
  • not be secretly used.

Registration of a patent is a complex process and, in Australia, can provide protection for between 8 and 25 years depending on the type of patent.

If you think you have a patentable product or idea, you should be very careful with whom you share it and what obligations they have to you when they do. If you don’t have the right protections in place and someone else decides to copy your work, there’s little you can do.

What is Confidential Information?

Confidential information cannot be registered but is recognised at law. It also encompasses some of the other forms of intellectual property, such as the details of a patent application are inherently confidential.

Generally, information takes a confidential character: 

  • when the information has the necessary quality of confidence;
  • when the circumstances surrounding the information creates a duty of confidence; and
  • based on the person who acquires that information.

Therefore, part of your business planning should involve making sure any employees are aware of their confidentiality obligations to the business.

What should be considered about intellectual property as an asset?

In addition to the above most examples, a design for a product packaging or a new type of plant bred can be registered. There are also other intellectual property rights known as moral rights that accrue to persons that have created intellectual property.

When planning a new business, consider the parts of a business that may be considered intellectual property. If there doubts, research, and consider whether seeking legal advice is necessary to help organise, plan and position the business’s intellectual assets.

Obtain advice as to an appropriate business structure that will protect the intellectual property as assets. If you are buying a business, you should perform due diligence to ensure the transfer of intellectual property is properly transferred.

Notes and Further Information

For further information on the commercialisation of intellectual property, general concepts about agreements and contracts are also explored:

Do you need legal advice? Call us on (03) 5331 1244 to get in touch and arrange an appointment with one of our lawyers.

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Authored by:
Ben Franklin, Managing Partner (LIV Accredited Specialist – Property Law), &
Matthew Tran, Lawyer.

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