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Intellectual property

We frequently hear comments about intellectual property (IP). Typical examples include reports of an artist's livelihood coming under threat because their work is being illegally downloaded or exchanged through peer to peer file sharing - this is copyright infringement. Another example is the value and importance of a company's brand and its non-tangible assets more generally. Less heard and discussed, but nonetheless of crucial importance, is how the law views intellectual property; how it is defined and how it is used to protect IP. Interestingly, unlike many rights, intellectual property was never afforded common law recognition and protection - it has always been statute based though admittedly this has been for quite some time. For example, grants of monopoly rights to exploit an invention have been made since Elizabethan times. 'Such a grant was a matter of the Sovereign's grace, and was made by the issue of Letters Patent. The introduction of a new manner of manufacture into the realm was rewarded by the grant of a monopoly for that manufacture to the person so introducing the new art. The justification for the grant of such monopolies was that it encouraged the introduction of new arts, and the welfare of the State was thus advanced.'1

1 Halsbury's Laws of England (Annotated) Intellectual Property

What is Intellectual Property?

Intellectual Property (IP) is not particularly easy to define. However, a good starting point would be the definition contained in the Convention Establishing the World Intellectual Property Organization (WIPO) to which Australia is a signatory.

Article 2 (Definitions) states that:

  • (viii) “intellectual property” shall include the rights relating to:
    • literary, artistic and scientific works,
    • performances of performing artists, phonograms, and broadcasts,
    • inventions in all fields of human endeavor,
    • scientific discoveries,
    • industrial designs,
    • trademarks, service marks, and commercial names and designations,
    • protection against unfair competition,
    • and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

As can be discerned from above, IP may be, and often is, nominally divided into two categories. They are:

    Industrial Property, which includes inventions, trademarks, industrial designs and confidential information; and

    Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, drawings, paintings, photographs, sculptures, architectural designs, websites, catalogues, manuals, plans, graphics, some databases and computer software.

Copyright law protects only the form of expression of ideas, not the ideas themselves, whereas Industrial Property, the novel ideas, solutions and innovations is generally protected by registration under the appropriate legislative scheme irrespective of whether or not there has been any expression of the idea.

How can Weblegal help?

We can assist you in protecting your IP from unscrupulous companies and individuals and advise on how you can commercially exploit your intellectual efforts. For example, we can draft and craft and negotiate licence agreements, assignments of copyright and advise and act on infringements. Examples of agreements and licences include:

  • Publishing licences and agreements with or without royalty and commission clauses
  • Contribution agreements
  • Editing agreements
  • Translation agreements
  • Dramatisation licences
  • Assignments of copyright in existing and future literary works
  • Agreements to commission artistic works
  • Assignments of copyright in photographs, sculptures, architect's plans and designs etc
  • Patent and know-how licence agreements
  • Assignments and agreements for assignment of patents

Weblegal can assist. Contact us if you would like to arrange a free consultation with no obligations. We can come to you.

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