Lecture Fundamentals of business law (4th): Chapter 17 - Margaret L. Barron, Richard J.A. Fletcher

Chapter 17 - Intellectual property. At the end of this chapter you should understand: ‘intellectual property law’ and the philosophy behind the concept of protecting intellectual property; how to distinguish between the products that are protected by copyright, patent, trade mark and design legislation; the definition of the term ‘copyright’ and explain how the law relating to it protects the physical expression of ideas;…

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Intellectual property

Chapter 17

• Copyright - The right to prevent the

unauthorised reproduction by a third party

of the tangible form in which a person has chosen to express his ideas.

• Statute - Copyright Act 1968 (Cwlth)

• Substance of Statute - Protects

expressions of ideas (not the idea itself).

Dramatic Work - Ballet

Artistic Works - Paintings

- Sculptures

- Drawings

Ownership of copyright

• Author - Employer, where author

under contract of service or apprenticeship

- Person who commissions and pays for work

- Maker of sound recording or film

Infringement of copyright

• Original Works - By person performing any of the

various acts in respect of the work without authorisation

or consent of owner of copyright.

Eg * Reproduction (i.e copying) in a material form the whole

or substantial part of a literary, dramatic, musical or artistic work.

* Importing copies of an original work for sale, hire, exhibition

or distribution.

* Performance of a work in public, or broadcasting of a work without consent of the owner.

• Copyright work in libraries

• Incidental appearances of artistic work in films or television

broadcasts

Remedies for infringement of

- Anton Pillar Order

Copyright Tribunal

• The Copyright Tribunal is authorised

to hold an inquiry into matters relating

to copyright.

Copyright Amendment (Moral Rights)

Act 2000 (Cwlth)

Rights of Attribution and Integrity (Moral Rights):

• for authors of literary,

dramatic, musical, or

artistic works.

• for directors and producers of cinematographic film

covering

• the right of attribution (right created identified)

• the right not to have works falsely attributed (creator has right

to prevent others claiming work)

Copyright Amendment (Moral Rights)

Act 2000 (Cwlth)

Defence: Reasonableness

Remedies: Damages

Injunction

Public Apology Order

Remove the infringement Reverse the infringement

Copyright Amendment (Digital) Agenda

Act 2000 (Cwlth)

Purpose: To extend copyright law

protection into the electronic

environment

• Statute - Designs Act 1906 (Cwlth)

• Substance of Statute - Protection for the visual forms

of articles that can be produced.

• Subject Matter - Featuring a shape, configuration

Duration of protection

• Registration for one year

• May be extended to six years

• May be extended twice more by five years

Infringement of designs

• Importing, producing or selling an

article of similar design, without

consent of the owner.

Trade marks

• Statute: Trade Marks Act 1995 (Cwlth)

• Substance of Statute: Enables providers of goods and

services to distinguish their goods and services.

• Subject Matter: Any combination of:

- letter - brand - word

- heading - name - label

- signature - ticket - numeral

- device - shape - colour

- sound - scent - aspect of packaging

• Examples: Deodorants

Air freshener sprays

Registration of trade marks

• Register maintained at Trade Marks Office.

Types of trade marks

• Distinguishing trade marks

• Certification of trade marks

• Defensive trade marks

• Collective trade marks

Duration of protection

• Initially for ten years, then renewed indefinitely for successive periods of ten years.

Objective of trade marks

• Protect goodwill associated with trade mark

• Exclusive rights to use trade mark

• Asset included in business valuation

• May assist with franchising and

licensing

Infringement of trade marks

• Use mark similar to registered trade mark, in order to deceive.

• Tort of passing off.

Remedies for infringement of

• Statute: Patents Act 1990 (Cwlth)

Patents Cooperation Treaty 1970

• Substance of Statute: An inventor has the sole and

exclusive right to exploit and to authorise another to

Application for patent

• Application for patents through Patents

Office.

 Prerequisites

- Disclosure

- Prove application meets the

requirement of being ‘novel’

- Tested against publications (written, oral or in use)

Duration of protection

• Petty Patent: Initially for twelve

months, extended up to six years.

• Innovation Patent: Replacement of

Petty Patent for a maximum of eight years

• Standard Patent: Twenty years.

Infringement of patents

• If invention is copied by manufacturing

or supplying goods whose use would infringe the patent.

Defences to infringement of

patents

• At date of infringement, defendant

was not aware of existence of patent.

Remedies for infringement of

Tort of passing off

• Person seeks to pass their own goods

or services off as the product of a

more successful competitor.

• Misrepresentation is made to prospective

customers of the trader, or ultimate customers of goods or services supplied by the trader.

• Misrepresentation is calculated at injuring the

business or goodwill of another trader.

• Misrepresentation must cause actual damage to

Confidential information (common

law)

• Substance: Restrains a person from using confidential

information obtained from another, when they do not have the consent of the other party.

• Subject Matter: - Information has nature of being

confidential

- Information received in circumstances where obligation of confidence is

expressed or implied

- Information communicated to a third

person without permission

• Examples: Trade Secrets

Government Information

Remedies for infringement of

confidential information

• Injunction

• Anton Pillar

• Damages