Intellectual Property FAQ

The main types of intellectual property are copyright, trade marks, patents, registered designs, plant breeder's rights, circuit layouts, and confidential information (trade secrets). Each has its own legislation, scope, and duration.

No. Copyright is automatic on creation of an original work in a material form. There is no copyright register in Australia. Copyright notices are not required for protection but are useful to put third parties on notice.

Copyright in literary, dramatic, musical, and artistic works lasts for the life of the author plus 70 years. Sound recordings and films last 70 years from first publication or making. Crown copyright has different rules.

The employer usually owns copyright in work created by an employee in the course of employment. The author retains moral rights. Special rules apply to journalists, photographers, and works created under commission.

Fair dealing is a limited defence to copyright infringement for specific purposes: research or study, criticism or review, news reporting, parody or satire, and legal advice. Australia does not have a broad fair use defence like the United States.

Any sign used to distinguish goods or services can be registered as a trade mark — words, logos, shapes, colours, sounds, scents, and combinations. The sign must be capable of distinguishing the applicant's goods or services from those of others.

A registered trade mark lasts 10 years from the filing date and can be renewed indefinitely for further 10-year periods. Failure to use the mark for a continuous 3-year period can expose it to removal for non-use.

A registered trade mark is infringed by using a sign that is substantially identical or deceptively similar to the registered mark as a trade mark on goods or services within the registered classes, without authorisation.

Passing off is a common law tort that protects goodwill in a business name or get-up. The plaintiff must show goodwill, a misrepresentation causing confusion, and damage. It is often pleaded alongside statutory misleading conduct claims under the Australian Consumer Law.

A standard patent protects new inventions that are novel, involve an inventive step, are useful, and are a manner of manufacture. Business methods and software must show a technical contribution following Commissioner of Patents v Aristocrat Technologies and related cases.

A standard patent lasts 20 years from the filing date, subject to payment of annual renewal fees. Pharmaceutical patents can be extended by up to 5 years under the pharmaceutical extension of term provisions, subject to specific criteria.

A provisional application establishes a priority date and gives the applicant 12 months to file a complete application (in Australia or under the PCT). It is useful for early protection while the commercial viability of the invention is tested.

A registered design protects the visual appearance of a product — shape, configuration, pattern, or ornamentation. Registration requires the design to be new and distinctive. Design protection is separate from copyright in artistic works.

A registered design has an initial term of 5 years from filing, renewable for one further 5-year period, for a maximum of 10 years total. This is shorter than copyright or patents and should be factored into commercial strategy.

Confidential information is protected by the equitable doctrine of breach of confidence and by contractual non-disclosure clauses. There is no statutory trade secrets regime in Australia — protection depends on how the information is treated, documented, and shared.

Contractors generally own the IP they create unless there is a written assignment or the IP was commissioned in a way that brings it within the specific commissioning provisions (e.g. certain photographs). Written assignment clauses are strongly recommended in all services agreements.

Remedies include injunctions, damages or an account of profits, delivery up or destruction of infringing goods, and declarations. Additional damages may be available under the Copyright Act and Trade Marks Act for flagrant infringement.

Yes. All registered IP rights and copyright can be assigned (outright transfer) or licensed (permission to use on terms). Assignments generally must be in writing and signed. Exclusive licensees typically have rights to sue for infringement.

Software is protected as a literary work under copyright from the moment it is written. Software inventions may also be patentable where they involve a technical contribution beyond a mere scheme, though the law continues to evolve.

A standard trade mark application typically costs $330-$1,500 per class plus attorney fees. A standard patent is substantially more ($5,000-$30,000+ over its life). Copyright is free (automatic). Enforcement proceedings run from tens of thousands to millions.