LAW REPORT
Trade secrets and confidential information are protected by keeping a secret rather than registering a right . Once the information is made public , it is no longer a trade secret , or confidential . These statuses are normally protected by contracts , agreement and internal management procedures . For information on contracts to cover you in this area , please see IP Australia .
Copyright
Copyright is the term for a right that can arise from written materials , artwork , such as plans or drawings or illustrations , and computer software and designs . Generally , we think of copyright as applying to creative work such as a book , an article , a film , a painting , a broadcast and a computer program .
In Australia , copyright protection is automatic . You don ’ t have to apply to register your copyright . The owner of copyright is usually the person who created the material , although there are some exceptions to this , such as when the creator is an employee and the material is created as part of their employment , in which case the employer will own the copyright . It is particularly important when selling a business to ensure that any asset in which copyright subsists is yours to sell .
Copyright therefore may belong to the employer , for example a publisher , but the law recognises that the creator must have some rights too . Moral rights are granted to the creator . This means that they have the right of attribution , that is , to be named as the author ; the right against false attribution , that is , another party taking credit for their work ; and the right not to have their work treated in a derogatory manner .
A person may have moral rights in content but not be the copyright owner . Let me give you an example . I wrote the article you are reading , so I have the right to be named as the author . However , because I am writing this for ATMS , the society owns the copyright .
ATMS will be the entity which will grant permission for this article to be copied , reproduced or used elsewhere . Copyright protection usually lasts the life of the author plus 70 years . For more information on copyright , please see FAQs on the Australian Copyright Council website .
Protecting your IP rights
There are two aspects to this . The first is global usage . Copyright is recognised automatically in global markets . For patents and trademarks you will need to apply in each country in which you intend to do business . The second aspect relates to the question of employment , for example , who owns intellectual property - the employer or the employee who created it ?
Generally speaking , the creator or originator of an idea , work , or novel invention is presumed to own the IP to their creations . However , if the work was created as a part of a work-madefor-hire agreement , or in an employeremployee agreement , the copyright belongs to the employer .
The owner of IP will , initially , normally be the creator of the IP for a copyrighted work , such as an inventor , an author , or an artist . However , in Australia , if IP is created by an employee in the course of their employment , the employer will then generally own it , unless there is a contract between employer and employee that states otherwise . If an employee developed IP outside their normal work role they may own the IP . For example , if I work as a massage therapist but create new cupcake recipes , those recipes will remain mine , as they were not made in the course of my employment . Note that for contractors the rules are different . Contractors generally own IP in work they have done , unless otherwise agreed in their contract .
As you can see this is an area that can create a lot of contention . Add to this the concept of confidentiality , and you can see why people spend a lot of time and money arguing about IP . How can we make this simpler ?
The best thing you can do as a business owner is have contracts with employees and contractors that make it clear who owns intellectual property and what ‘ confidential ’ means in relation to your information . IP Australia has some great tips on this at IP Australia on IP ownership . The first two are worth reproducing here too .
1 . Create a contract before work starts Make sure IP ownership is dealt with at the beginning before starting any collaboration . Even the earliest stages of work can create important IP rights .
The contract should include :
• confidentiality clauses / agreements
• non-compete clauses in employee contracts ( employees today may become competitors tomorrow ).
2 . Create a written agreement A written agreement that clearly states who owns the IP rights to any material created by an employee or contractor will reduce unnecessary confusion .
The agreement should include :
• whether , and when , transfer of ownership will take place
• who has the right to exploit it
• who is to pay for it
• whether improvements or modifications are allowed .
My advice to you is to review your own situation . Your IP is a valuable asset to your business and don ’ t let anyone threaten that . Protect yourself and your business . Don ’ t leave this to chance or goodwill .
JATMS | Autumn 2021 | 37