Many people don’t fully understand the impact of intellectual property law on their day-to-day business operations. A common misconception is that unless your business generates inventions or involves artists, musicians or filmmakers, intellectual property law isn’t a concern.
This is not correct.
“Intellectual Property” encapsulates a range of subject matters, including copyright, trademarks, patents, designs, circuit layout and confidential information. The elements of intellectual property law are woven into many of the things that every business engages in. For example, if you advertise your business, if you use consultants, if you purchase and use software or if your business uses branding to identify itself, you are engaging with “intellectual property”.
For the purpose of this article, however, let’s look at a couple of simple examples.
Using a Consultant and Copyright
When your business engages a consultant, copyright in any material that is developed or produced by that consultant will be owned by him/her automatically unless it is agreed otherwise. Copyright can exist in the most mundane of things – reports, PowerPoint presentations, tables, Excel spreadsheets, training manuals and the like. The law of copyright says that unless there is a written agreement between the parties whereby copyright is “assigned” to the recipient of the work, the party which produces the work will own copyright in that work.
If the consultant does not agree to assign copyright to your business, then the next best thing is a written licence to use the work. As a licensee, it is in your best interest to have a broad grant of permissions. The ideal situation is to have an exclusive, perpetual, royalty-free, worldwide licence to use without restriction. On the other hand, the licensor may, for example, want to limit the use of the copyright to the actual subject matter under the consultancy agreement and to be able to re-use the materials they have produced for other clients. What is reasonable will depend on the subject matter and the situation.
Trade Mark Protection
Another area of intellectual property law that should concern almost every business is trade marks. If your business trades under a distinct name or mark that you would like protected, the best avenue is to register that name or mark with IP Australia.
Although businesses may have some protection in respect of their brands under general law, even if they do not have a registered trade mark, registration of a trade mark gives the owner better protection. The owner of a registered trade mark has a relatively easy and cost efficient legal recourse against infringers using the same or a similar trade mark in relation to goods and/or services which are the same as, or similar to, the goods or services for which the trade mark is registered. Another important consideration about a registered trade mark is that it can be bought, sold, mortgaged and licensed like any other property and often has some value attached to it.
Protecting your intellectual property
The law of intellectual property is complex and wide-ranging. However, there are simple ways to navigate these subject matters when dealing with ordinary day-to-day business transactions. If you have any questions about this article, or about any issues you are facing that concern intellectual property, please contact George Paramananthan at firstname.lastname@example.org or Ruth Sweetman at email@example.com.
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