16 intellectual property © oxford university press, 2007. all rights reserved

16Intellectual Property

© Oxford University Press, 2007. All rights reserved.

Intellectual Property

Learning Objectives:

• Understand what is intellectual property;

• Explain what is meant by the term copyright;

• Understand how copyright may be infringed;

• Explain how a trademark operates;

• Describe the patent application process;

• Understand the law on registered designs.

Intellectual Property cont ...Copyright: What is it?

• Copyright is one of the most common forms of intellectual property right and is created when a person or entity produces an “original work”.

• Originality

• No formal registration process

• Duration:- Life of the author plus 70 years.

Intellectual Property cont ...

Copyright Infringement: How does it occur?

• Can be either direct or indirect.

• Substantial reproduction of the work

• Test of objective similarity:

Hart v Edwards Hot Water Systems (1985) 61 ALR 251.

Intellectual Property cont…

Television broadcasts

Channel 10 v Channel 9 (“the Panel Case”) High Court held that copyright does not subsist in each individual image and copying an individual image or frame could not constitute a substantial taking for the purposes of infringement.


Copyright Defences: What is available & how do they apply?

• fair dealing for the purpose of research and study (s.40 Copyright Act);

• fair dealing for the purpose of criticism or review (s.41 Copyright Act); and

• fair dealing for the purpose of news and reporting (s.42 Copyright Act).

Intellectual Property cont ...Trade Marks

What is a Trade Mark?

• The main elements of a trade mark include a sign that is in use or intended to be used and is capable of distinguishing goods or services.

• Key test of “distinctiveness”.


How does one obtain a Trade Mark?

Registering a trade mark involves a number of steps as outlined in the following diagram.


How is a Trade Mark infringed?

• Direct Infringement:- 120(1)

• Indirect Infringement:- Section 120(2)

• Well-known Trade Marks:- Section 120(3)


Patents

What is a patent?A patent provides the most exclusive form of intellectual property and are given to inventors who satisfy the following conditions:-

• a manner of manufacture; • novelty;• inventive step;• utility; and • be not in secret use.


• Test of patentable invention.

• The threshold test has been interpreted to mean that subject matter of the patent must not already exist or be so obvious to a person skilled in the relevant field or art.


How is a patent infringed? S.17 Patents Act

• supply or sale of infringing material, importation and trafficking,

• use of subject matter without the consent of the patent holder and

• making infringing copies.


What Defences are available?

• Limited defences are available for an action of patent infringement:-

• use of invention in foreign vessels, aircrafts and prior use: s.118-119.

• innocent infringement: s.123.


DesignsWhat is a registered design?

Designs Act 2003 (Cth) • streamline the application and registration process for

registered designs;• single design or multiple designs in a single application • consistent enforcement and dispute resolution procedures • registration period reduced from 16 years to 10 years.


How does one register a design?

• Test of new and distinctiveness;

• Designs Registrar Formalities Check;

• Registration Details contained in Register

• Certificate of Registration

16 intellectual property © oxford university press, 2007. all rights reserved

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