Copyright and other rights

1.Copyrights

These rights are protected by Act of parliament and deter others from copying your work. Registration is not required or possible in Australia. It protects most creative works such as writing in any language, music, computer programs, paintings, songs, plans and drawings. You must be the author, assignee, or the employer of the author to own the copyright. more information

2.Trademarks

Marks can be either distinctive marks or names at common law which have acquired a reputation, or by registration under statute. Registration of a distinctive mark or name before use by others is the preferred position. more information

3.Confidential Information

This is information in any provable form (verbal, written or electronic) which a business treats as confidential and is not already in the public domain and is important to a business strategy.
more information

4.Patents

These are monopoly rights created by Statute and require registration before the invention is disclosed to the public. Each must be a new way of achieving a result. more information

Copyright

Copyright arises under the Copyright Act 1968 in Australia and gives the author/owner the sole and exclusive right to reproduce the whole, or at his election, a substantial part of the work, and to publish and translate the work into another language (computer or electronic) or to derive a new program from that work. This necessarily includes the right to translate from source code to object code(subject to certain defences such as copying a small portion of the program for research or study, and creating a backup). The whole of the Internet site will be protected by copyright, although the law allows someone to copy a small portin of it in some circusmtances (such as for research or study). It may not be your property and where you have acquired content from another person you must ensure you have a license to use that material.

1.2

Copyright gives the author or owner a bundle of exclusive rights, which includes the following:-

(i) the right to reproduce the whole or a substantial part of the work;

(ii) the right to publish the work;

(iii) the right to translate the work into other languages;

(iv) the right to translate the work to other computer languages;

(v) the right to create derivative works using a substantial part of the existing copyright.

1.3

Remember that the plans/ideas behind your website are not protected as a plot in a dramatic play is not protected. The protection afforded your site arises from your use of the language and layout in recording your ideas. The same result achieved by your website can be achieved using the same ideas or "plot" in a different, perhaps substantially different, site and without infringing your copyright.

1.4

In establishing your entitlement to the protection of the copyright in your site, you must establish an appropriate connection with Australia;

(i) if you have published your program by having your site hosted by a Internet Service Provider, then your copyright will subsist only if you, as the author, were an Australian citizen at that time, or The program or site was available in Australia over the Internet

(ii) if you have not published your website, you as the author must have been an Australian citizen for a substantial part of the period over which you created the website.

 

1.5

Copyright subsists for the life of the author and thereafter for fifty (50) years. If the owner is a company then it subsists for fifty (50) years from the date of first publication. The act of publication involves making a sufficient number of copies of the program to meet reasonable public demand. The statutory period commences with the act of publication.

1.6

For copyright to exists, work must be characterised as a literary, dramatic, musical or artistic work. Literary work includes computer programs. In addition, there must be a direct connection between that material and the author.

1.7

Copyright protection vests automatically and is not the subject of any formality, provided that the subject works falls within one of the classification provided for in the Copyright Act and the author was an Australian at the time of authorship.

1.8

A computer program is made when it is first reduced to writing or to some other material form.

1.9

Simple and complex programs have been abandoned to the public domain and there is no value in writting a program asserting copyright to same if it already resides on the public domain. This may also be an offence under the Copyright Act

1.10

Copyright may not be enforceable if it is contrary to public policy, so the question arises as to whether blasphemous, indecent, seditious or libellous work is contrary to public policy and its enforcability thereby affected.

2. Trademarks

Every great site has a great trade mark and your site should have a similar benefit from the beginning if you are to promote your goods and services

Trade Marks are protected at common law if unregistered and distinctive of your goods and services and are protected by the Trade Marks Act 1995 if registered with the Trade Marks office. The term "Trade Mark" is synonymous with the term "Trade Name".

Trade marks involve entirely different concepts to those involved in business names, company names and personal names. Trade marks attribute ownership and quality to products and services whilst the other names identify business and persons irrespective of their products and service. Registration of a trade mark before use is not mandatory, whilst registration of a business name is. A trade mark registration and/or use involves a mark containing symbols and/or words whereas a business name can contain words only.

To maximise your internet site's opportunities by registering a trade mark as its "handle", you should avoid names which describe an attribute of your website. The best trade mark is an invented or adopted name, such as Westpac or Apache. An application for the mark "Ultracare" was disallowed because it described an attribute of a product being its use for care of an extreme kind. The symbol TM near a word or logo means that it is claimed as trade mark and not necesssaily a registered trade mark which would be indicated with the symbol ¨.

There is no doubt that most great trade marks are, in fact, surnames and are usually the surname of the inventor or perhaps his partner's daughter. See the following trade marks:- Mercedes Benz, Sony, Ford, Dolby, Kellogs etc. Each of these names were the surnames of the inventor or the author of the product and registration probably followed after reputation in the goods was established. Westpac is a good example of a new and an invented trade name.

To register under the Trade Marks Act, expert knowledge of that Act is required. There is a delay of six (6) months whilst the application is examined and granted but, upon grant, your rights are retrospective to the date of lodgment.

Publication prior to registration of a trade mark involving its commercial use does not deny you the right to ultimate registration. Publication of patents (e.g. commercial use or disclosure) prior to registration disentitles the applicant to protection under the Patent Act 1990

Considerable and expensive difficulties surround the enforcement of an unregistered trade mark, so if you are serious about the exploitation of your internet site, you should create an attractive and non-descriptive name and promptly proceed to have an application lodged on your behalf. This ensures that at all times during the development and exploitation process you have an adequate and acceptable mark protected upon which you can build goodwill and reputation. Failure to promptly lodge an application can mean that another person may have taken your name.

You need to take into account that your trade mark will relate to Australia only, whilst your copyright has international standing. You may need to consider registration of your trade mark in other countries.

Prior to lodging an application, searches must be carried out to ensure that there are no competing users of the mark or similar marks in Australia. The test is as to whether your application is for a mark which is substantially identical or deceptively similar to a mark registered or pending registration in the same class of goods or services (or of a different class but in relation to similar goods or services).

The trade mark will be valid for seven (7) years from the date of lodgment and may be renewed for a further fourteen (14) years. .

In order to protect your trade mark it is important that you commence marketing your internet site as early as possible and thereby show the connection in the course of trade between the trade mark and your goods and yourself. If you choose a weak trade mark and have feeble trading activity, then you could find that you are unable to enforce your trade mark. It is for this reason that you must accept the need for an invented word as a trade mark and best not a descriptive trade mark.

3. Confidential Information

3.1

Confidential Information or Trade Secrets are a class of intellectual property that is protected by the common law. It is information and methods which are of the calibre of patentable ideas which you treat as secret, valuable and confidential. No statutory protection is available.

3.2

In addition to your copyright and your registered trade mark, you may find that you are the owner of confidential information in your internet site and/or instruction manual, programming methods or other records. Most business information held by companies are not capable of being protected as confidential information as it is usually a compilation of material held on public record.

3.3

You must be able to identify with clarity what you see to be your confidential information and the disclosure of that confidential information must be made on a limited basis so that a relationship of confidence and trust is expressly or impliedly introduced before a breach of confidence occurs.

3.4

Disclosure to an employee of confidential information in the course of their employment by you is an example of a relationship in which there is implied confidence and trust. Developed critical path plans and programming procedures unique to yourself and pricing structures and methods are capable of protection and should not be carelessly disclosed to a third party without them accepting an obligation of secrecy and trust.

3.5

Disclosure to third parties necessitates you expressly or impliedly introducing, before the disclosure, an understanding that the disclosure will be made in trust and confidence and that the material is a trade secret and confidential to you.

3.6

If you claim that certain of your methods and records are confidential, then you should be meticulous in retaining the secrecy of the information and be seen to regularly assert that right to confidentiality when there is breach of the confidence and trust. Failure to do so can be fatal to your interests.

4. Patents

4.1

Patent protection is a monopoly right to exploit a novel invention and arises under the Patents Act 1990. It protects ideas and concepts capable of being worked or expressed physically irrespective of the size and shape of the physical expression. Patent law does not protect the form of expression but only the inventive concept. A program is essentially an exercise in mathematics and no one can claim a monopoly over mathematical process no matter how unique.

4.2

If the program is part of a practical and inventive process, then it may be patentable. A computer program may, if it is in itself an advance in the science and art of computer hardware or computer technology or, being an inherent part of inventive process, be the subject of a successful patent application.