Intellectual property and technology

Copyright

The main source of copyright law in Australia is the Copyright Act 1968 (Cth) (Copyright Act). There is no system of registration for copyright in Australia; copyright automatically arises in a work or other subject matter upon its creation.

Protected subject matter
The categories of subject matter that can be protected by copyright are: literary, dramatic, musical and artistic works, sound recordings, films, broadcasts and published editions of works.

Rights
Copyright in works includes the right to:

• reproduce the work in a material form;
• publish the work;
• perform the work in public;
• communicate the work to the public;
• in the case of a literary work (other than a computer program) or a musical or dramatic work, enter into a commercial rental arrangement in respect of the work reproduced in a sound recording;
• in the case of a computer program, enter into a commercial rental arrangement in respect of the program; and
• make an adaptation of the work or do any of the above in relation to the adaptation.

Individual creators of works also have moral rights, being:

• the right to be identified as the author;
• the right to object to derogatory treatment; and
• the right not to suffer false attribution.

Moral rights are applicable to literary, dramatic, musical or artistic works, live performances and films. Moral rights do not apply to sound recordings, broadcasts or published editions of works.

Duration of copyright
In relation to works, copyright expires 70 years from the end of the calendar year in which the author dies.

Copyright in sound recordings and films expires 70 years from the end of the calendar year in which the recording or film is first published.

Copyright in a broadcast expires 50 years from the end of the calendar year in which the broadcast was made.

Copyright in published editions expires 25 years from the end of the calendar year in which the work was first published.

Moral rights last until the expiry of copyright in the relevant work, with two exceptions. An author’s right to object to derogatory treatment in respect of a film and a performer’s right to object to derogatory treatment in respect of a recorded performance lasts only for the life of the author and the performer, respectively.

Trade marks

Trade marks may be registered under the Trade Marks Act 1995 (Cth). In order to be registrable, a trade mark must be distinctive of the applicant’s goods or services. The trade mark may either be inherently distinctive (a made-up word or logo) or have gained distinctiveness through use.

Registration gives the registrant the exclusive right to use the registered trade mark in relation to the goods or services for which it is registered. In Australia, a trade mark registration lasts for 10 years, but it may be renewed for further 10-year terms indefinitely.

At common law, rights can also exist in relation to unregistered trademarks, which are considered part of the goodwill of a business.

Patents

Patents are governed by the Patents Act 1990 (Cth), which currently provides for two forms of patent:

• a standard patent, which has a term of 20 years from the date of filing of the application (and up to 25 years for pharmaceuticals); and
• an innovation patent, which has a lower threshold of patentability and a shorter term of eight years from filing. However, innovation patents are in the process of being phased out with no new applications accepted after 25 August 2021.

The term of a patent cannot be extended (except in the case of pharmaceuticals which may be extended for a further five years in certain circumstances).

In Australia, inventions may also be protected as confidential information under the common law.

In order for a patent to be granted, at the date of application the relevant invention must be new (that is, not disclosed or used anywhere in the world), useful, and inventive or innovative.

When granted, a patent will give the patentee exclusive commercial rights to the invention (a monopoly).

The applicant must provide an Australian address for legal service as well as an address for correspondence (which does not have to be in Australia).

Australia is a party to the Paris Convention and the Patent Co-operation Treaty, which allows a foreign applicant to file a patent application in Australia within a certain period of filing in another Convention country.

Registered designs

Appearance designs may be registered under the Designs Act 2003 (Cth). Copyright protection is not available for articles produced in commercial quantities.

A design will be registered provided it is appropriate subject matter and there are no similar designs previously registered. Once registered, the owner has:

• protection for the visual appearance of the relevant product; and
• exclusive rights to commercially use, license, or sell the design.

However, a registered design may not be enforced against third parties until it has been examined and certified. To be certified, a design must be new and distinctive.

Registration protects the design for five years from the date the application was filed and can be renewed once for a further five years.