Intellectual property: the basics

The term ‘intellectual property’ (IP) covers the wide range of intangible property that results from the creative and intellectual effort of individuals and organisations. For most businesses the creation or development of these is a process that is often forgotten about or ignored.

It is important to understand the rights granted by law to protect IP. These rights affect the way you deal with material in your business or job. Different types of IP rights include:

  • copyright
  • patents
  • trademarks
  • registered design
  • plant breeder’s rights
  • circuit layout rights
  • moral rights
  • confidential information (including trade secrets).

It is not unusual to use more than one form of protection. Creating IP does not necessarily provide ownership or protection. However, all IP rights enable the owner of the IP to control the use of the IP in certain ways. This can include licencing the intellectual property or selling it to a third party.

What is not intellectual property?

Company names, business names and domain names are not IP.

Company names and business names exist because the Corporations Act 2001 (Cth) and the Business Names Registration Act 2011 (Cth) require the registration of company names and business names before companies and businesses can legally operate.

A domain name is an address on the internet. A domain name is a licence to use the address; it is not property.

The Corporations Act, the Business Names Registration Act and domain name registration do not provide any IP protection for names. However, names can sometimes be protected as trademarks under the Trade Marks Act 1995 (Cth), or under the common law.

While company names, business names and domain names are not IP, they are still important for a business to protect, as they form part of its identity, reputation and brand.

Protecting your IP

IP assets, described as ‘intangible’ assets, have the potential to create competitive advantage and bring value to an organisation when managed effectively. Protecting your IP assets allows you to protect the ownership rights in your original idea or invention. You should be fully aware of your rights and the pros and cons of formal IP protection before disclosing your idea or invention to others.

Creating awareness of the value of IP creates a culture of protecting business value. Once a decision has been made to proceed with any form of IP protection, engage a professional to assist.

We find that it is generally necessary to articulate the IP into a documentary form.

Managing your IP

As your business grows, success may depend on appropriate management of an expanding IP portfolio. It is necessary to ensure that your IP is always protected.

After capturing organisational IP, its potential value to the business needs to be established. The organisation also needs to establish whether any IP is owned by other parties, including the public. If and in what form protection or publication of the IP should be secured will be a business judgment based on legal advice, contractual implications, the value of the IP to the organisation, and its ability to defend its IP.