Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revision Previous revision
Next revision
Previous revision
ausip:intro-ip [2019/03/08 10:13]
jessiej_87 update table
ausip:intro-ip [2019/09/11 11:52] (current)
nic
Line 6: Line 6:
 ## What is Intellectual Property? ## What is Intellectual Property?
  
-Intellectual property is the title given to a class of exclusive ​rights ​over intangible ​creations. ​There are a variety ​of different ​areas of law within ​intellectual property ​law with the most common ​being copyright, trade marks, industrial designs and patent law. There are also sui generis laws, which include rights such as plant breeders rights, ​design circuits ​and geographical indicators. The table below sets out the key Australian ​statutes ​for intellectual property law. +Intellectual ​Property (IP) is a unique kind of legal ‘property’. Unlike physical property, which can be seen and touched, intellectual ​property is also known as ‘intangible property’ because it does not always take physical form. Intellectual property rights aim to protect the intellectual and creative efforts ​of individuals and organisations. 
 + 
 +IP plays an important role in fostering and rewarding originality,​ innovation and creativity in our economy. The legal system for protecting IP helps to identify and acknowledge ownership ​rights ​in creations. ​These ownership rights add economic value to creations and help to provide competitive advantage in the market. For example, these rights allow an IP owner to charge a fee to someone who wants to use or copy their creation or invention. 
 + 
 +### IP does not protect ideas 
 + 
 +It is important to note that intellectual property does not protect an idea or a concept. 
 + 
 +It is only when an idea is developed into a form of expression or into an invention that it becomes intellectual property. The law protects the way in which the idea is expressed, or a tangible invention that embodies the idea, rather than the idea itself. 
 + 
 +<WRAP center round box 90%> 
 +**For example:** Copyright law will protect the way that a book, such as a Harry Potter novel, is written, but will not protect the idea behind the story, such as the idea of a school for teenage wizards and witches. 
 + 
 +Songs, logos, theatrical plays and scientific inventions ​are all examples of things intellectual property can protect. 
 + 
 +Other things that do not qualify for intellectual property protection include 
 + 
 +* facts 
 + 
 +* pure data 
 + 
 +* mathematical equations. 
 + 
 +**Why not?** 
 + 
 +Because these things should be free for all people to use. Also, facts exist independently of any one person – they have not been ‘created’ or ‘invented’ by anyone. 
 + 
 +</​WRAP>​ 
 + 
 + 
 +### Types of IP 
 + 
 +**Video overview by Nic Suzor on the different types of [Intellectual Property](https://​www.youtube.com/​watch?​v=eOiHqDYhaF4)** 
 + 
 +The term ‘intellectual property right’ is broad term and branches out into different types of rights. Each of these IP rights protect ​different ​forms of intellectual property. The most common ​types of IP are: copyright, trade marks, industrial designsand patent law. 
 + 
 +In this video, Rob talks about the rights he considered to [protect the IP in a safety helmet](https://​www.youtube.com/​watch?​v=lTKbx91AE_4) he designed. Watch the video for an overview of the different types of IP as applied to a business context 
 + 
 +#### Copyright 
 + 
 +The term ‘copyright’ refers to the legal rights vested in the creators and publishers of an artistic, dramatic, musical or literary work, as well as sound recordings, films and broadcasts. From the moment a work comes into existence, copyright grants its creator an automatic right to copy, publish, perform and distribute the work.    
 + 
 +The main objective of copyright is to promote creativity and provide incentives to people who invest their time and talent in creating works of cultural and economic significance. 
 + 
 +Copyright law does not make any judgments about the aesthetic or cultural quality of a work. Thus, a ‘literary work’ simply refers to something in writing – a book, for example, does not need to qualify as high literature to receive copyright protection. An instruction manual for a new computer may receive protection as a literary work. 
 + 
 +Over time, copyright has evolved in its scope and application. It also covers computer programs, radio and TV broadcasts, cinematographic films (i.e. movies) and sound recordings. 
 + 
 +#### Patents 
 + 
 +A patent is a legal right granted to protect new and useful inventions. An invention might be a product (such as a machine), a process (such as a method for extracting one chemical from another), or a new technical solution to an existing problem. Some software inventions may also be protected by a patent. 
 + 
 +The objective of patent law is to recognise inventors for their inventions and encourage development of new technologies in every field. 
 + 
 +#### Trademarks 
 + 
 +A ‘trademark’,​ as the name suggests, is a unique mark with which a trade or business can identify itself in the market. We commonly think of these marks as ‘logos’. A trademark helps a business to distinguish its goods and/or services from competitors in a marketplace. A trademark may consist of a letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of these. While it is possible to acquire a trademark over something like a colour or smell, it is extremely rare. 
 + 
 +Once registered, a trademark gives the owner a legal right to: 
 + 
 +* use the trademark in relation to its goods or services, permit others to use the mark, or sell the mark 
 +* stop competitors from using a same or confusingly similar trademark. 
 + 
 +<WRAP center round info 90%> 
 +The meaning and function of a ‘trademark’ is different from that of a ‘company name’, ‘business name’ and a ‘domain name’ or URL. A business may choose to adopt the same trademark as its company name, however, registering a business name or a domain name would not give the owner the right to stop others from adopting a same or similar company or business name. 
 +</​WRAP>​ 
 + 
 +#### Designs 
 + 
 +A design right aims to protect the outward appearance or aesthetic appeal of a product. It covers shapes, ornamentation,​ configuration and pattern. Designs differ from patents in that they cover how a product looks, rather than how it works. 
 + 
 +To qualify for registration,​ a design must have a commercial application or use, and must be new and distinctive compared to what has gone before. Once registered, the law gives the owner the sole right to commercially use, license or sell the design. Design registration lasts for 5 years, with the opportunity to renew registration up to 10 years.  
 + 
 +<WRAP center round info 90%> 
 +For designers to get protection, a design must be registered before any manufacturing starts. One-off artistic designs for things like fashion, art, and furniture will often be automatically covered by copyright law and do not require design registration unless they are mass produced (50 or more items). Once a design is mass-produced or once the owner registers for design protection, copyright in the artist design is lost. 
 +</​WRAP>​ 
 + 
 +### Sources of IP law 
 + 
 +In addition to the four main categories of IP discussed above, there are also a few other rules and sui generis laws for particular types of subject matter. These include rights such as plant breeders rights, ​circuit designs, ​and geographical indicators. The table below sets out the key Australian ​sources ​for intellectual property law. 
  
 ^Intellectual Property Area        ^Rights ​              ​^Source of Law in Australia | ^Intellectual Property Area        ^Rights ​              ​^Source of Law in Australia |
Line 13: Line 92:
 | Patents | to commercially exploit an invention | //Patent Act 1990// (Cth) | | Patents | to commercially exploit an invention | //Patent Act 1990// (Cth) |
 | Design | to apply a shape or pattern to a creation | //Design Act 2003// (Cth) |  | Design | to apply a shape or pattern to a creation | //Design Act 2003// (Cth) | 
 +| Plant Breeders'​ Rights | | |
 +| Circuit designs | | |
 +| Geographical Indicators | | |
 +| Trade secrets | | Common law (Breach of Confidence) |
  
  
  
-**Video overview by Nic Suzor on [Intellectual Property ​Law](https://​www.youtube.com/​watch?v=eOiHqDYhaF4)** +## Why do we have Intellectual Property?
   ​   ​
 Intellectual property law, and especially copyright and patent law, is thought to have a predominantly instrumental function. It provides creators of new work (whether it is inventors of patents or authors and publishers alike), with certain incentives in order to encourage the creation of new expression. It does this by granting creators control over certain uses of their creations for specified periods of time, limiting who may exploit, or make use of the creations. Each specific area of intellectual property law confers exclusive rights to the creator or owner. The exclusive rights vary between the types of intellectual property law, however, the concept of exclusive use of the creations remains the same.  Intellectual property law, and especially copyright and patent law, is thought to have a predominantly instrumental function. It provides creators of new work (whether it is inventors of patents or authors and publishers alike), with certain incentives in order to encourage the creation of new expression. It does this by granting creators control over certain uses of their creations for specified periods of time, limiting who may exploit, or make use of the creations. Each specific area of intellectual property law confers exclusive rights to the creator or owner. The exclusive rights vary between the types of intellectual property law, however, the concept of exclusive use of the creations remains the same. 
Line 60: Line 142:
 | 1886 | The Berne Convention | //The Berne Convention for the Protection of Literary and Artistic Works// aims to give creators the right to control and receive payment for their creative works on an international level. This agreement applies to copyright.| ​ | 1886 | The Berne Convention | //The Berne Convention for the Protection of Literary and Artistic Works// aims to give creators the right to control and receive payment for their creative works on an international level. This agreement applies to copyright.| ​
 | 1893 | BIRPI is established | The //United International Bureaux for the Protection of Intellectual Property// (//BIRPI//) was an international organisation set up in 1893 to administer the //Berne Convention for the Protection of Literary and Artistic Works// and the //Paris Convention for the Protection of Industrial Property//. The BIRPI is the predecessor of the //World Intellectual Property Organisation//​ (//​WIPO//​).| ​ | 1893 | BIRPI is established | The //United International Bureaux for the Protection of Intellectual Property// (//BIRPI//) was an international organisation set up in 1893 to administer the //Berne Convention for the Protection of Literary and Artistic Works// and the //Paris Convention for the Protection of Industrial Property//. The BIRPI is the predecessor of the //World Intellectual Property Organisation//​ (//​WIPO//​).| ​
-| 1947 - 1949 | //General Agreement on Tariffs and Trade// (//GATT//) | In 1947, the //General Agreement on Tariffs and Trade// (//GATT//) is signed, following decades of economic instability with the Great Depression and World War II. The Agreement was negotiated during the UN Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the //​International Trade Organisation//​ (//ITO//). The idea behind GATT was to set up basic trade rules and reduce tariffs between countries.| ​+| 1947 - 1949 | //General Agreement on Tariffs and Trade// (//GATT//) | In 1947, the //General Agreement on Tariffs and Trade// (//GATT//) is signed, following decades of economic instability with the Great Depression and World War II. The Agreement was negotiated during the United Nations ​Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the //​International Trade Organisation//​ (//ITO//). The idea behind ​//GATT// was to set up basic trade rules and reduce tariffs between countries.| ​
 | 1970; 1974 | //The World Intellectual Property Organisation//​ (//WIPO//)| The Convention establishing the //World Intellectual Property Organisation//​ (//WIPO//) comes into force (on 26 April 1970) and //BIRPI// is thus transformed to become //WIPO//. The newly established //WIPO// is a member state-led, intergovernmental organisation,​ with its headquarters in Geneva, Switzerland. //WIPO// has two main purposes: (1) to provide legal and technical assistance, particularly to developing countries, to develop IP regimes; and (2) to administer the multilateral IP agreements.| ​ | 1970; 1974 | //The World Intellectual Property Organisation//​ (//WIPO//)| The Convention establishing the //World Intellectual Property Organisation//​ (//WIPO//) comes into force (on 26 April 1970) and //BIRPI// is thus transformed to become //WIPO//. The newly established //WIPO// is a member state-led, intergovernmental organisation,​ with its headquarters in Geneva, Switzerland. //WIPO// has two main purposes: (1) to provide legal and technical assistance, particularly to developing countries, to develop IP regimes; and (2) to administer the multilateral IP agreements.| ​
 | 1986 - 1994 | The Uruguay Round| The //Uruguay Round// was a round of multilateral trade negotiations conducted within the framework of the GATT. The round began in 1986, but negotiations stalled in 1991 when the US refused to agree to anything unless intellectual property was included within the negotiations. The //Uruguay Round// concluded in 1994 with the signing of the //Marrakesh Agreement//,​ which established the //WTO//. Members also agreed to the Dispute Settlement Understanding (DSU), which is annexed to the Marrakesh Agreement.| | 1986 - 1994 | The Uruguay Round| The //Uruguay Round// was a round of multilateral trade negotiations conducted within the framework of the GATT. The round began in 1986, but negotiations stalled in 1991 when the US refused to agree to anything unless intellectual property was included within the negotiations. The //Uruguay Round// concluded in 1994 with the signing of the //Marrakesh Agreement//,​ which established the //WTO//. Members also agreed to the Dispute Settlement Understanding (DSU), which is annexed to the Marrakesh Agreement.|
Line 67: Line 149:
 | 2001 | The Doha Declaration | The Doha Development Round commences in 2001. The Doha Declaration on the //TRIPS// Agreement and Public Health is adopted by the WTO Ministerial Conference on 14 November 2001.| ​ | 2001 | The Doha Declaration | The Doha Development Round commences in 2001. The Doha Declaration on the //TRIPS// Agreement and Public Health is adopted by the WTO Ministerial Conference on 14 November 2001.| ​
 | 2004/2005 | //​Australia-US Free Trade Agreement// (//​AUSFTA//​)| On 18 May 2004, the //Australia – United States Free Trade Agreement// (//​AUSFTA//​) is signed. ​ This is a preferential trade agreement between Australia and the United States modelled on the //North American Free Trade Agreement// (//​NAFTA//​). The Agreement came into effect on 1 January 2005.| | 2004/2005 | //​Australia-US Free Trade Agreement// (//​AUSFTA//​)| On 18 May 2004, the //Australia – United States Free Trade Agreement// (//​AUSFTA//​) is signed. ​ This is a preferential trade agreement between Australia and the United States modelled on the //North American Free Trade Agreement// (//​NAFTA//​). The Agreement came into effect on 1 January 2005.|
-| 2013 and beyond | The Trans-Pacific Partnership Agreement | +| 2013 and beyond | The Trans-Pacific Partnership Agreement ​| The //​Trans-Pacific Partnership Agreement// (//TPP//) was negotiated between twelve countries that border the Pacific Ocean: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. These countries represent approximately 40% of the world'​s economic output, making the //TPP// the largest trade agreement in history. However, before negotiations were finalised, on 23 January 2017, when US President Donald Trump took office, he signed a presidential memorandum to withdraw the United States from //TPP// negotiations. While other //TPP// countries, including Australia, have stated that they plan to continue //TPP// negotiations,​ the future of the agreement looks uncertain without US involvement.|
  
-Intellectual property law has been relatively harmonised worldwide. There are a number of agreements regarding intellectual property law in general, and more specific agreements that apply to certain areas of intellectual property. The World Intellectual Property Organisation (WIPO) is an international agency, established in 1967 which administers treaties such as the //Paris Convention on the Protection of Industrial Property 1883// and the //Berne Convention for the Protection of Literary and Artistic Works 1886//, //WIPO Performances and Phonograms Treaty// and //WIPO Copyright Treaty//. It is WIPO's obligation to administer intellectual property matters and there are approximately 22 intellectual property treaties under its administration. Whilst WIPO administers the treaties, it does not have the requisite power to ensure compliance of the treaties. As a result of this, the //World Trade Organisation Agreement// was enacted, specifically the part that deals with intellectual property, the //Trade Related Aspects of Intellectual Property Rights 1994// (//​TRIPS//​).+Intellectual property law has been relatively harmonised worldwide. There are a number of agreements regarding intellectual property law in general, and more specific agreements that apply to certain areas of intellectual property. The [World Intellectual Property Organisation](https://​www.wipo.int/​about-wipo/​en/​) ​(WIPO) is an international agency, established in 1967 which administers treaties such as the //Paris Convention on the Protection of Industrial Property 1883// and the //Berne Convention for the Protection of Literary and Artistic Works 1886//, //WIPO Performances and Phonograms Treaty// and //WIPO Copyright Treaty//. It is WIPO's obligation to administer intellectual property matters and there are approximately 22 intellectual property treaties under its administration. Whilst WIPO administers the treaties, it does not have the requisite power to ensure compliance of the treaties. As a result of this, the //World Trade Organisation Agreement// was enacted, specifically the part that deals with intellectual property, the //Trade Related Aspects of Intellectual Property Rights 1994// (//​TRIPS//​).
  
 //TRIPS// is an international agreement which identifies 5 minimum standards for intellectual property that all members of the WTO must adhere to. Further, each WTO member is required by //TRIPS// to enforce these standards. //TRIPS// is an international agreement which identifies 5 minimum standards for intellectual property that all members of the WTO must adhere to. Further, each WTO member is required by //TRIPS// to enforce these standards.
  • ausip/intro-ip.1552000432.txt.gz
  • Last modified: 6 months ago
  • by jessiej_87