It’s My Right: Automatic IP Rights in Australia

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Table of Contents

• What are Automatic IP rights?
• Copyright
• Circuit Layouts
• Trade Secrets
• Key Takeaways

Intellectual Property (IP) can take a long time to be approved, registered and enforced against others. For example, most trademarks take a year to be fully registered. However, there are three types of automatic IP rights in Australia:

• Copyright
• Circuit layouts
• Trade secrets

What are Automatic IP rights?

Automatic IP rights simply means that as the owner of the IP, you do not need to register it to enforce it against others who you believe has copied or reproduced it. It is automatically protected.We examine the three types of automatically protected IP below.

Copyright

Copyright protects the expression or presentation of an idea or creative concept. These ideas can be expressed in written, visual, music or moving images and can be documented on paper or electronically. There is no limit on the ideas and they can include anything from an artist’s paintings to computer programs.

Copyright gives you, the copyright owner, the exclusive right to use, reproduce, publish and communicate your work. Copyright lasts for the IP owner’s lifetime plus an additional seventy years. Along with copyright, moral rights are also jointly conferred on the copyright owner. Copyright policy is managed by the Department of Communications and the Arts and regulated under the Copyright Act 1968.  

Some countries, like the US, requires IP owners to register their copyright for it to be enforceable. As this is not the case in Australia, IP owners should be aware that any Australian websites that offer to guarantee copyright protection or allows you to register copyright for a fee has no authority to do so.

Circuit Layouts

These are the topographies, i.e. designs and plans, of integrated circuits that are used in computer equipment. It is a 2D representation of electronic components in an integrated circuit. In general this refers to computer chips or other electronic chip designs. They are usually highly complex to create and design, and their value is based on the fact that most electronic devices cannot function without one.

As the owner of a circuit layout, you have the exclusive right to copy the layout in material form, make integrated circuits based on the layout and exploit it commercially. Circuit layout rights are closely based on copyright law principles, however they are considered a separate form of protection. Like copyright, circuit layouts are also the responsibility of the Department of Communications and the Arts. The key difference between copyright and circuit layouts is that these rights are not as long-lasting. Where copyright goes past your lifetime, circuit layout rights last for ten years from the first commercial exploitation, which must occur within ten years of the layout creation, hence the maximum protection period for a circuit layout is twenty years.

Trade Secrets

Trade secrets are a business’ proprietary and confidential knowledge. This can include secret formulas, processes and methods used in production.

This is a common method that some businesses use to protect inventions without registering a patent, as doing so means the secret will need to be disclosed. For example, Coca-Cola’s recipe is a trade secret rather than a patent.

However, it should be noted that trade secrets are difficult to maintain in the long term, particularly if your business expands and more employees are taken on. Trade secrets are protected at common law and those who disclose the secret can be seen to have breached confidentiality, however for a court to uphold it as a trade secret you will need to prove that you have made ‘reasonable efforts’ to protect it to make a compelling case. The most common way to do this is to ensure that non-disclosure agreements have been drafted and signed by employees, business partners and other third parties who have had access to the information.

Key Takeaways

There are certain IP rights in Australia that are automatically conferred. The drawback of these is that they lack the stronger protection of registered IP, including patents, trade marks, designs and plant breeder’s rights. To fully protect your IP using a type of registered protection is recommended. However, automatic rights provide a solid basis to protecting your ideas.