It seems that there are countless social media platforms: Facebook, Instagram, Pinterest, Twitter, Snapchat, YouTube and LinkedIn, just to name a few.

One common feature of all of these platforms is that they all enable online sharing – the sharing of thoughts, ideas, photographs, videos and handiworks. So what is intellectual property (IP) law and just how do we protect our ideas or expressions of ideas when we engage in online sharing? How do our IP laws work and what IP rights are we giving up when we use these social media platforms?

Copyright in Australia

In Australia, the expression of certain types of works will be automatically protected by copyright without the need for any formal registration. These works include literary, dramatic, musical or artistic works.   Notably, a photograph is protected by copyright as a product of the art of photography, regardless of whether there is any real skill or artistic ability exercised by the person who takes the photograph. In simplest terms, this basically means that every photograph that is taken is automatically protected by copyright, and the author of that photograph has certain legal rights in relation to its use.

So what rights do we give up when sharing a photo via social media?

The answer depends on the terms of use that a user agrees to when he or she signs up to the relevant platform. However, given the sheer number of social media platforms and their prolific use, it is possible that many users are inadvertently altering or disposing of their legal rights. Also, when clicking ‘I agree’ to use the platform, how many of us actually read the terms and conditions, so we really know what we are agreeing to?

What else are we giving away?

In addition to the possible inadvertent surrender of one’s copyright, the use of social media also allows for thoughts, ideas and expressions to be disseminated across the globe, and there are obvious issues when it comes to the protection and enforceability of one’s legal rights when a breach has occurred in another jurisdiction. If, for example, a person writes an article and shares it on LinkedIn, and that article is shared with hundreds of online users, what rights would the author have if, say, a university student in another country plagiarised their article? How would the author go about enforcing those rights? Would it be worth the time and effort involved in navigating the IP laws and legal systems of the other country?

These are just two examples of the difficulties that exist in relation to intellectual property and social media. The issues become more significant when a person has intended to earn a livelihood from their works – for example, unsigned musical artists and amateur filmmakers.

At the very least, it seems that the existence of issues such as these highlights the need for more education in the IP space. We should all know what rights we have in our work so we can decide what to do with them.

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While preparing a lecture on fashion law, trademarks and intellectual property, a strange thought occurred to me: “Is my skin an illegal artwork?” Don’t get me wrong, I’m no masterpiece. I do, however, have tattoos. One illustration by Audrey Kawasaki, one of my favourite Japanese-American artists, is sizeable and took nine hours to complete.

The tattoo was completed long before I turned my mind to the intricacies of intellectual property law, which is developing at rapid speed around the world. We’re talking attempts made by companies to trademark colours, shapes of lego and chocolate, hashtags and cheerleading costumes. Elsewhere, famous individuals have sought to protect personal branding and potential financial loss by really stretching the definition of what is trademarkable (think Taylor Swift trademarking the phrase “this sick beat” and Gene Simmons seeking to trademark the infamous ‘devil horns’ hand gesture). There has also been widespread and expensive litigation surrounding copyright infringement of popular songs and photographs.

What is, and importantly, what is not capable of being protected by intellectual property law has significant flow on implications for individual creative rights and, increasingly, for big business.

Personally, I have occasionally regretted my failure to contact Kawasaki and request permission to use her design for my tattoo, although at the time my mind was more preoccupied with “arghhhh needles!”

So the question remains: could I be breaching Australian copyright law? Could my tattoo artist? The answer is a resounding … probably.

While there is little law in this rather niche area, especially in Australia, it has been judicially considered in the United States.

Are tattoos subject to copyright protection?

Short answer – yes.

Long answer – it may depend on where you live.

The UK, for example, has been reticent to explore litigation in this area, citing irreconcilable tensions between human rights law, including the right to privacy and freedom of expression, and copyright protection.

In the United States, like Australia, it is not necessary to register copyright for the protection to exist. However, to sue for copyright infringement of a creative work in the US, it is necessary to have registered the design. Copyright infringement of tattoos is a developing area in the US and one that has seen a number of high profile cases in recent years.

In Australia, copyright law automatically protects original ‘artistic works’ such as paintings, drawings, cartoons, sculptures, craft work, architectural plans, buildings, photographs, maps and plans. However, there is still some uncertainty around whether a tattoo would qualify as an artistic work in Australia and there has been no litigation in this area to clarify the issue.

Some commentators have suggested that to put the matter beyond doubt tattoo artists could sketch or draw original designs on a sheet of paper prior to beginning a tattoo on skin.

Do celebrities and sports stars own their tattoos? 

Sometimes it’s a movie

For anyone who has endured the 2011 film The Hangover: Part II, you may have observed a copyright violation. In the film, ‘Stu the dentist’ ends up with boxer Mike Tyson’s signature tattoo inked on his face.

As it turns out, Tyson’s distinctive tattoo was designed by the award-winning tattoo artist, Victor Witmill, who has described Tyson’s design as “one of the most distinctive tattoos in the nation.” At the time the tattoo was completed, Witmill had the foresight to have Tyson sign a document confirming that ownership rights to the original design vested in him as the artist.

Fast forward to Warner Bros. anticipated release of The Hangover: Part II and – bang – Witmill sought an injunction to prevent the studio from releasing the film on the basis of copyright infringement given that he was not contacted by either the studio or Tyson to seek his permission to use the image in the film or to credit his creation.

The Honorable Catherine D. Perry referred to the contract/release between Tyson and Witnill as:

totally consistent and appropriate under copyright law.”

and was also satisfied that Warner Bros. use of the design was unauthorised. It was noted that on the balance of equities (given the “very large” harm to the studio and loss of millions of dollars) as well as public interest considerations (given that the public wanted to see the movie and theatre owners stood to lose a lot of money) that Witmill’s injunction should be denied and the film allowed to open.

However, despite the ruling, Judge Perry said that Whitmill would “probably win” his case if he sued Warner Bros. Witmill went ahead and sued the studio for copyright infringement and the case was settled out of court for an undisclosed sum.

Playing video games

As we have seen with The Hangover: Part II, any replication of a tattoo design without permission from the creator can constitute a breach of copyright.

When it comes to video games, to enhance the user experience and simulate reality, sports stars are created as realistically as possible even down to replicating tattoos.

In recent years, several lawsuits have been filed over the use of copyrighted tattoos on players without permission from the artist.

EA Sports has come under scrutiny several times. The company was sued over a 2004 game, NFL Street, which prominently depicted footballer Ricky Williams’ tattoo created by artist, Stephen Allen, on the cover of the video game. Allen sued both Williams and the publisher for replicating the tattoo without seeking his permission.

In 2012, UFC fighter Carlos Condit’s tattoo artist filed a lawsuit against video game developer THQ for featuring his artwork in a new UFC game without permission. The tattoo artist sought $US 4 million and was awarded $US 22,500 but later challenged this sum as inadequate. The case settled for an undisclosed figure.

It should come as no surprise, then, that for the 2014 game release, EA Sports, who now owns the UFC licence, removed or altered tattoo artwork on its digital fighters, including Carlos Condit’s famous ink, to avoid any risk of litigation from owners of the original designs.

One savvy game developer who has taken note of the growing litigation trend surrounding the replication of original tattoos in video game development is Madden. Its NFL game depicts all players, apart from Colin Kaepernick, as cleanskins.

The NFL players association has raised similar concerns with its members and advised players to obtain a written release from tattoo artists even before the needles are unpacked. For existing tattoos, players are advised to contact the creator of the original tattoo and obtain a release. Managers for Colin Kaepernick of the San Francisco 49ers even wisely asked tattoo artist Nes Andrion of Endless Ink to sign a waiver ensuring Kaepernick’s tattoos were his and his alone.

As we have seen, not seeking permission from a tattoo artist or failing to obtain a written release, particularly in the case of sporting stars, can result in dire and very expensive consequences.

A 2016 copyright infringement case, for example, saw the NBA 2K16 game company, Take Two, sued by Solid Oak Sketches for over $US 1.1 million for the license to use their designs in video game representations of some of the biggest stars of the NBA including Kenyon Martin, LeBron James and Kobe Bryant.

The skin you’re in 

In an age where social media influencers have millions of followers viewing personal images daily, it doesn’t seem like such a reach to consider the possibility that our bodies are becoming billboards that advertise our commercial interests, sponsors, passions, personality and perhaps our identity to the world. But how absolute is our ownership of the skin we live in?

Depending on how the law develops in this area, we may not own the artwork on it.

It’s easy to accept that making a copy of an artwork to hang in our home is a breach of the original artist’s copyright. But how is replicating another artist’s original work in the form of a tattoo on our skin any different? Will the courts accept such similarities or will tattoos be considered too impermanent to be copyright protected in Australia? It bears mention that a tattoo design walks around all day with you and is much more visible to the public than it would be hanging in your home.

While the answer to how far Australian copyright protection of tattoo art extends does remain somewhat unclear, it’s safe to move forward using a few key principles:

1. before being inked, wherever possible, consider a copyright agreement that clearly stipulates who owns the tattoo
2. seek permission in writing in situations where, like my Kawasaki tattoo, your prospective ink replicates the original work of another artist
3. as professional athletes and other public figures are most at risk of coming under scrutiny for tattoo copyright violations, try to avoid becoming a celebrity (insta-famous or otherwise) and, if you do, cover up your body art.

Do you have any tattoos that could be violating copyright law? Let us know in the comments! 

deliver the resilience and integrity of all the digital platforms on which our 21st century economies are built.”

The Government is right to focus on fostering an environment for better digital intelligence but the real challenge is paving the way for Australia to become a place where people want to own and retain intellectual property, not take it overseas.

Whilst Australia has a mature and desirable market, we still have a way to go in creating a digital intelligence environment conducive to strong capital growth.

Other countries cannot be criticised for having better ways of preserving capital. Experts and digital labor will continue to follow this capital abroad unless significant changes are made here in Australia.

Any government-backed programme to retain smart businesses in Australia, needs to be coupled with a new wave of tax reforms that encourage the creation and retention of intellectual property.

Governments around the world are trying to navigate taxing intellectual property in a borderless environment and there is tough competition between countries.

Home grown intellectual property should be encouraged to remain in Australia. Tax reform is a necessary tool when other countries are desperately trying to attract great ideas using concessional taxation of intellectual property. The people that have conceived those ideas will surely follow.

The Australian government’s $11.2 million initiative to establish “Landing Pads” in Berlin, San Francisco, Shanghai, Singapore and Tel Aviv, was designed to provide market-ready startups with a 90 day operational base located in one of the five global innovation hotspots.

While such an initiative could equip start-ups with the necessary tools to get their foot in the door, it also raises issues of integrity and security of that Intellectual property and whether sufficient protocols and measures are in place to ensure that it can be both commercialised and safeguarded abroad.

The state and federal governments should place greater importance on implementing long-term initiatives that dovetail with models of proven initiatives at a local level.

For example, Brisbane is leading the way in terms of creating a prosperous local environment for digital businesses to form.

Brisbane was only the second city in the world to appoint a Chief Digital Officer who worked with the business community to form a digital first strategy which aims to drive digital uptake and use in Brisbane.

Critical ingredients to the success of these up and coming business hubs are international transport links, high quality internet services and simple and easy work environments.

Start-ups would also benefit from having access to the distribution platforms of established players. If the federal government were to support larger digital businesses with distribution by encouraging them to keep their IP here, these larger businesses would be better placed to support the startup economy.

It’s time that the industry has a shake up and Australia should be looking at ways to keep the digital sphere close to home.

An IP style hub located in regional Western Australia, for example, could provide a gateway to strengthening Australian-Asian ties while also compensating for our deteriorating mining industry.

Business development, skills and information sharing are all key drivers in industry growth and it’s time that we focus on supporting and driving these elements within our own country to bolster businesses, big and small. More importantly, it’s imperative that local, state and federal initiatives are coordinated to ensure Australia’s best and brightest ideas are not lured away from our digital sphere when they are on the brink of commercialisation.

We thought it was about time to set the record straight and debunk the most common copyright law myths.

The meaning of the copyright symbol ©

Myth: If no copyright symbol © is present then I can use the material.

Reality: This is not the case! Around the world, the copyright symbol is a unique identifier that material is copyrighted, however, in Australia, the symbol itself does not need to be present for protection to exist. Every piece of creative material is protected, regardless of whether the copyright © symbol appears on the work since copyright protection in Australia is automatic as soon as the written or artistic work has been created. There is no need to register or apply for copyright protection. The only requirement is that the work is in a material form or documented in some way. For example, saved to a CD or a handwritten score. The work does not need to be published to be protected by copyright law and it does not need to be considered ‘good quality’.

I have a great concept that no one can copy because copyright law protects my ideas

Myth: Copyright law protects all types of creativity, including ideas.

Reality: Unfortunately, copyright laws do not protect ideas themselves, only the expression of ideas. That is, the way something is written, the way something sounds and the way something looks. So, if you have an idea for a new cookbook that could be a bestseller, whatever you do, don’t tell anyone about it – just start writing!

I only replicated a small portion of the work, so it is not considered a copyright infringement

Myth: You can copy another person’s work, provided you only use less than 10% of it.

Reality: There is no magic number. The test is whether a substantial or integral part of the work has been copied. In practice, this can boil down to even a few bars of music.

Prior to the release of his hit song, ‘Somebody That I Used To Know’ in 2011 Wally De Backer (aka Gotye) sought a music licence which provided that all royalties would be split 55/45 with the estate of the deceased musician, Luiz Bonfa.

Listen to the first 5 seconds, of Bonfa’s track ‘Seville’ and the introduction to Gotye’s song below to hear why:

https://www.youtube.com/watch?v=QpYsxwD4Uc0

Although these few seconds cost Gotye millions of dollars in royalties, the licence that granted him permission to do so saved him an ugly copyright lawsuit, millions of dollars in damages and legal fees as well as a damaged reputation.

Whether it’s a guitar hook, two bars of music, or a sampled design, always seek permission from the copyright owner before using any material that you did not create.

If it is published on the internet, then I can copy it

Myth: The internet is a public domain. Anyone who publishes information or content online has waived their copyright ownership.

Reality: Using the internet as a platform to publish creative work does not diminish an author’s or creator’s copyright protection. Regardless of whether work is published on the internet or in a library book, copyright protection still exists. Check for guidelines on how you can use content on a website in the Terms & Conditions. This will also tell you whether any copyright protections have been waived.

I’m going to film a parody of Guy Sebastian’s latest song on Bondi – it’ll be fine because it’s funny and everyone does this sort of thing

Myth: It’s not Copyright infringement if I’m doing it for entertainment purposes.

Reality: Although there are a number of defences that make provision for the use of certain material, these defences are limited. If the work has been used for the purposes of research or study, to report the news, to critique a work or to create a parody, or if the work is being used in a private, domestic context it may fall under ‘fair dealing’ exceptions.

If you wish to copy part of a book for the purpose of critiquing it (a valid defence under copyright law), your use must be a fair dealing and you must credit the author. This means that if there is no need to copy the entire book, and if you could use only small parts of the book to achieve the same purpose, a court may find you engaged in an unfair dealing and you may be liable for copyright infringement.

The Wrap

All in all, it’s important to be wary of what you read on the internet. Remember to follow Gotye’s lead and always err on the side of safety lest you infringe the creative rights of another person.

When it comes to copyright law, it is much easier to seek permission than to ask for forgiveness.

What common copyright myths have you stumbled across on the internet? Think we’ve missed anything? Let us know in the comments!

The result? A document of over 750 pages that identifies pretty much every flaw in our current system, and boy are there a lot of them!

It’s the stuff dreams are made of, not least because it (yet again) recommends the adoption of a fair use exception in order to redress the imbalance between the rights of copyright owners and those of consumers and would-be derivative creators.

The report confirms what many advocates of reform in this sphere have known for a while – our intellectual property arrangements are insufficient in an increasingly digital world, and improvement is needed across the spectrum of IP rights.

As immaterial as IP arrangements might seem to the average person on the street, there’s no doubt that having up to date, responsive and, above all, fair IP laws is increasingly necessary lest we sacrifice accessibility in the name of protectionism.

Striking an appropriate regulatory balance between the rights of the creator and those of the consumer will be the difference between living in a world that feels like a product of Kurt Vonnegut’s imagination, and one characterised by a rich public domain, where ideas flow freely.

When novel issues arise, governments are sometimes slow to respond by exercising undue caution. In the IP sphere, this has given rise to all sorts of problematic regulations, namely the so-called “right to be forgotten” in the European Union and the Harmful Digital Communications Act in New Zealand. While the Australian government has been pretty unresponsive to similar challenges, it’s important that we take the recommendations of this report seriously so as not to be led down the overly protectionist path of New Zealand and the European Union.

What are the recommendations?

What I like most about this inquiry is that the Productivity Commission really went back to basics, beginning by outlining why IP arrangements exist, something that appears to have escaped many legislators. The overview of the report provides that:

IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:

•  foster creative endeavour and investment in IP that would not otherwise occur

• only provide the incentive needed to induce that additional investment or endeavour

• resist impeding follow–on innovation, competition and access to goods and services.”

This incentives-based approach is one that should be the basis of any IP law – the first question regulators need to be asking themselves is: “Will this law incentivise creation and facilitate the proliferation of ideas?” Only if the answer is yes should the policy proceed.

While a number of important recommendations flow from the report a few are worthy of specific mention:

1. The first focuses on the need to improve access to enforcement mechanisms for small and medium sized enterprises. To this end, the report recommends the introduction of a specialist IP list within the Federal Circuit Court, making it easier for firms that are not well-resourced to resolve disputes quickly, without the need for litigation, and with lower costs and risks involved.

2. The report also recommends the implementation of an open access policy for publicly-funded research. This means improved access to research material, facilitating its dissemination, use and development.

3. In a similar vein, the report recommends clarification of the law surrounding technological protection measures and geoblocking technology to make it easier for users to access legitimate content.

4. It is unclear under current law whether it is an offence for consumers to circumvent geoblockers (technology that restricts access to content based on your geographical location). The report recommends amending the Copyright Act 1968 to clarify that it is not an offence for consumers to circumvent this technology. According to the report:

Research consistently demonstrates that timely and cost effective access to copyright-protected works is the best way for industry to reduce online copyright infringement. The Commission is recommending making it easier for users to access legitimate copyright-protected content.”

This would be a big win for anyone despairing over limited music catalogues and how feeble the Australian Netflix library is when compared to the U.S version.

Above all, as the report points out, what Australia needs is someone committed to and passionate about IP arrangements to drive reform in this area. Other reforms have fallen victim to misinformation and scare campaigns, largely because this area is so nuanced and multifaceted.

Without someone to champion the recommendations of this report any hope of reform in this area is likely to once again disappear into the ether.

*This article is based on Productivity Commission data, Intellectual Property Arrangements, Inquiry Report.

Have anything to add to this story? Let us know in the comments!

Further Information

To read the full report into Australia’s intellectual property arrangements, visit:

• Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra

Hashtags have proven to be very valuable tools for businesses, with Facebook, Twitter and Instagram posts that include hashtags returning twice the engagement rate of those without one. While hashtags are too short to be afforded copyright protection (they hardly constitute ‘literary works’, now, do they?) and don’t qualify for patent protection because they are not an invention, it is possible to register a hashtag as a trade mark for your business.

#MakeItYourOwn: Hashtags As Intellectual Property (IP)

Trade marks help with brand recognition and differentiating your business from your competitors.

To qualify for trade mark protection, a hashtag must be something most consumers consider to be synonymous with your business (a brand identifier) and not merely a social media tool. In other words, if most people in the general public associate a hashtag with your product or service, it likely qualifies for trade mark registration. Think #sayitwithpepsi, which was registered as a trade mark by PEPSICO last year, or Twisties’ #lifesprettystraight hashtag.

In most cases, the “#” symbol itself is not considered the registerable part of the trade mark, rather, what follows the hashtag (for example, the unique word or phrase) that is checked against the requirements for trade mark protection.

What Is A Trade Mark And How Do I Get One?

Put simply, a trade mark is a unique descriptor – a logo, word, phrase, sound, smell, shape, picture, movement, aspect of packaging, letter, number, or a combination of these – that helps consumers distinguish between your goods and services and those of other businesses.

Unlike copyright protection, a trade mark does not automatically protect your intellectual property. Trade marks need to be registered with the relevant government authority, IP Australia.

Successfully registering your hashtag as a trade mark gives you exclusive rights to that trade mark for 10 years. If another business infringes those rights by using your hashtag without your permission, you can sue them for damages.

Trade mark protection is, however, subject to some qualifications. You must continue to use your trade mark (if you cease using it for three years you risk having it taken from the register), and it must continue to be regarded as a trade mark. This means that if your hashtag becomes a common name to describe goods or services, it is possible for someone else to seek to have your trade mark cancelled through the courts.

What Value Can A Hashtag Provide Your Business?

As a powerful content indexing tool, hashtags are incredibly valuable particularly given their potential to go viral.

Hashtags are recognised by brands as a low-cost marketing technique that, when used correctly, can be a fast, highly-effective and lucrative way to #jointheconversation and drastically increase audience engagement and sales. When used in conjunction with social media influencer marketing, the potential for growth is enormous.

Some of the most popular campaigns in recent memory have even gained traction with mainstream media outlets, leading to even more market exposure (think about the #MyCalvins campaign).

Increasingly businesses are seeking to not only stake their claim on their plot of digital real estate but also to protect themselves against other businesses who seek to cash in on their popularity. For example, where a competing enterprise piggybacks on the success of your social media stream by using a hashtag you created to promote their marketing agenda.

As the digital landscape becomes more and more crowded, businesses are looking to add value to their social media marketing strategy in more novel and distinctive ways. It seems that trade marking hashtags is a growing trend that is likely to gain much more momentum in the future as it becomes an integral part of brand strategy.

So, how will you differentiate your business from the rest of the digital crowd in 2017?

Further Information

For more guidance on the status of hashtags under trade mark provisions in Australia visit:

• IP Australia – What do hashtags mean for trade marks

To make an application to register your hashtag for trade mark protection visit:

• IP Australia – Hot to apply for a trade mark

When many young entrepreneurs and start-ups turn their minds to business assets, matters such as finances, office accommodation, computers, equipment and staff are among the first things that come to mind.

But protecting your business assets, and the profits that flow from them, also encompasses intellectual property (IP).

Australia’s framework of IP laws are designed to protect everyone – whether you are an entrepreneur, small business owner, designer, artist or inventor – with exclusive rights to use and control your intellectual or creative work.

What Area Of Intellectual Property (IP) Law Protects You?

The first step is to work out what kind of IP you actually own. IP is not registered or protected as a physical ‘thing’, but rather as a set of rights over how certain things such as sounds, images, words or creative works are used.

IP is the umbrella term for ‘property’ that you have developed and devised through your intellect. Nevertheless, not all IP is the same, and not all creations will attract IP protection under the law. Some forms of IP require formal registration through a government body to be protected by the law; while other forms are automatic.

Ideas are not IP and cannot be protected as IP. To protect a form of IP, it must have an aspect of physicality or be in some tangible form.

1. Patents

Patents are devices, substances, processes or methods that are useful, new and inventive.

Quite often, patents are referred to as ‘inventions’. To successfully claim protection and ownership of a patent, patents must have formal registration.

To satisfy the ‘new’ component of a patent, it is very important that you keep your invention somewhat secret. Do not share your invention with the world before it has patent protection.

Patents grant their owners a state-granted monopoly of the commercialisation of the invention, but they do have a maximum life span for you to exploit them as your exclusive property. The number of years you have this monopoly over the invention will depend on the type of patent you obtain.

2. Designs

A registered design covers the look or appearance of a product that is new and distinctive.

It does not, however, cover how something works, i.e. its purpose or function. These aspects are likely to come under the heading of patents.

To achieve the greatest degree of protection under the law, and to ensure your designs are not copied, you will need to have certification of your registered design. Again, as a design must be new, you will need to look into filing any applications prior to publicly disclosing your designs. The maximum lifespan for a design is 10 years, during which time you have exclusive ownership to exploit the design.

3. Trade Marks

As an entrepreneur or business owner, do you use any signs or symbols to distinguish your goods and services from the goods and services of other traders?

A trade mark can be your brand name, logo, slogan, or even more abstract things like sounds, smells and colours.

Formal registration is required for the owner of a trade mark to claim protection and ownership. While patents and designs must be new, trade marks do not have this same requirement, which means applications can be made after publicly disclosing your trade marks. Trade marks, in Australia, can be renewed in 10 year blocks indefinitely.

4. Plant Breeders Rights

If you are able to successfully breed new and distinctive plant varieties, you may be entitled to register IP rights over this breed.

Like trade marks, these rights are not granted automatically. Since the plant variety needs to be new to satisfy the registration requirements, it is important to seek advice to assess your legal position before publicly disclosing your plant breed. If you disclose your discovery too early, the opportunity to gain exclusive ownership may be lost entirely.

5. Copyright

In Australia, copyright protection is an automatic form of IP protection. This means that you do not need to submit any painstaking applications, or pay any government fees.

Copyright protection covers ‘works’ that are creative and original, including literary works, broadcasting works, dramatic works, and works of craftsmanship, to name a few. In other words, if you created or authored the work, then you own the copyright in that work.

If you have outsourced any sort of work, it is important to check that your contractor’s contract stipulates that ownership of copyright in works created in the course of their employment is assigned (transferred) back to you. Failure to check this will mean that, by default, the contractor will own the copyright they create.

Copyright protection lasts for the life of the creator, plus 70 years. In cases where the duration depends on the year of publication of the work, it lasts until 70 years after it was first published.

6. Circuit Layouts

Circuit layouts are automatic rights granted to original layout designs of integrated circuits and computer chips.

Although these laws are based on the laws of copyright, circuit layouts are a distinct form of IP that is protectable in its own right. From the first commercial exploitation of a circuit layout, the owner will have 10 years of exclusive ownership rights.

To be valid, however, the first commercial exploit must take place within 10 years of the date of creation of the circuit layout. This means that the lifespan is, in some cases, more like 20 years.

Important Takeaways

• The subject matter of Designs, Patents and Plant Breeders Rights all must be new. As such, any sale, promotion or public disclosure of your patent, design or plant may forfeit your ability to seek protection. Get legal advice before you share your intellectual property with anyone, and, if disclosure is inescapable, make sure that the other party signs a confidentiality agreement.

• In general, intellectual property rights apply in all states of the country in which you are granted rights. As such, when looking to commercialise your IP in other international jurisdictions, it will be important to look into the filing and registration requirements of those countries.  In certain cases, particularly with Designs and Patents, there are limitations on how much time you have to apply for registration overseas.

Conclusion

To be a successful young entrepreneur or start-up it is critical to understand, and be proactive, in safeguarding your rights and interests.

Obtaining IP protection and registration can be a complex and confusing process. Any mistakes made during the application stages can leave you unprotected, with an invalid protection and/or the need to redo the application, which may lead to further expenses.

The best approach is to seek advice from a legal professional who specialises in IP law early, and especially when lodging your applications and registrations. This way you can rest assured that your IP interests are water tight.

Further Information

For efficient, high-quality and cost-effective advice visit:

• LegalVision website; or
• Ph: 1300 544 755

LegalVision business lawyers primarily work online, meaning you can receive a response to your legal question quickly (often within 48 hours).