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Intellectual property

Note: This page provides only general information on intellectual property. It is not intended to be a complete or definitive statement of the law. Formal legal advice should be sought if you have a specific matter.

 

What is intellectual property?

Intellectual property is the result of an individual's intellectual endeavours and is capable of being protected by legal rights. Intellectual property rights are generally monopoly rights guided by economic principles: the desire to encourage people to undertake intellectual and economic investments by rewarding them with monopoly rights over the creative outputs of their activities. As such, intellectual property rights are intangible assets which can be bought and sold (assigned), rented (licensed) and defended like other forms of property.

Copyright

Copyright is an automatic right of protection in relation to literary, artistic, dramatic or musical works, and other works such as films, broadcasts, multimedia and computer programs. Copyright law is governed by the Copyright Act 1968 (Commonwealth).

Copyright essentially gives the owner a bundle of exclusive rights to copy, adapt, broadcast and perform the copyright material. However, the Copyright Act does provide some limited exceptions to infringement of copyright.

Copyright protects the expression of the work. It does not protect the actual information contained in the work. So if you were to publish an article revealing the details of a great invention, the expression of words used will be protected but not the invention itself.

For more information on copyright, the Australian Copyright Council website contains some excellent information sheets and articles.

For more information relating to your use of copyright materials for University activities, please visit the University's Copyright website or contact the University's Copyright Officer

Patents

A patent is a right granted for any device, substance, method or process which is new, inventive and useful. You cannot patent artistic creations, mathematical models, plans, schemes or purely mental processes.

Patents are not automatic – you must apply for the rights. However, a patent will not be granted if the invention has had previous public disclosure (e.g. through publications or simple disclosure of information).

Patents provide the owner with the exclusive rights to exploit the invention described in the patent, generally for up to 20 years.

For more information on patents, please visit the IP Australia website

Confidential information

Confidential information is any information which is not within the public domain. There is no formal process to protect confidential information. While it is confidential only those who know about it are able to exploit it. If confidential information is released it automatically becomes available for anybody to use and exploit. Confidential information is valuable as long as it is kept confidential.

Obligations of confidentiality are often contained in contracts between parties exchanging confidential information. However, even if there is no contract, a party who is in receipt of information which it knows or ought to have known is confidential is under an obligation of confidence.

Designs

A design relates to the visual appearance of a product (e.g. shape, configuration, pattern, ornamentation). A design can be registered and protected under the Designs Act, but it must be new (i.e. not previously published) and distinctive. Registered designs do not grant protection over the feel of the product, what it is made from or how it works.

For more information on designs please visit the IP Australia website

Trademarks

A trademark is used to distinguish the goods and services of one trader from those of another. A trademark can consist of words, symbols, pictures, sounds, smells or a combination of these. Generally trademarks are required to be registered, however rights can be established through use.

A registered trademark gives the owner a right to use, licence or sell it within Australia for the goods and services for which it is registered.

For more information on trademarks please visit the IP Australia website

Circuit layout rights and Plant breeders rights

Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips. There is no requirement for registration. The owner of an original circuit layout has exclusive rights to copy the layout in material form, make integrated circuits from the layout and exploit it commercially in Australia.

Plant breeders rights protect new varieties of plants. These rights must be registered.


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Ownership of IP

Staff

Intellectual property generated by University staff in the course of or incidental to their employment is automatically owned by the University. This is in accordance with legal principles governing employer-employee relationships. The position is further clarified in the University's Intellectual Property policy. In order to reward staff for their contribution to the development of intellectual property, the University has established mechanisms for sharing returns from commercialisation of intellectual property with staff who have created that IP.

Students

The University does not automatically own intellectual property developed by students. Students will generally own the intellectual property they develop during the course of their studies. Thus is subject to any other arrangements a student may enter into, including through employment.

However, the University will claim ownership of intellectual property arising from University-Student projects, in accordance with the University's Intellectual Property policy. A University-Student project is a project involving a student where

In such a situation, the University will request the student to enter into a Student Project Participation Agreement prior to commencing involvement on the project. In return, the student will be entitled to a share of returns from commercialisation of the intellectual property on the same basis as for staff members.

Third parties

Third parties will generally own the intellectual property they produce. Therefore, prior to undertaking projects involving collaborators from outside the University, or engaging third parties to undertake work for the University, it is important to ensure that intellectual property arrangements are documented in a contract.


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Reporting IP and Commercialisation

Intellectual property is a valuable asset. The University and its industry partners invest significant resources into the creation of intellectual property and seek returns through its commercialisation. Methods of commercialisation include licensing, formation of spin-off companies and the sale of intellectual property rights. The University seeks to the returns from such commercialisation with the parties who have created the intellectual property.

If you have created intellectual property which may be capable of commercialisation, you must inform your Business Development Manager or the University's commercialisation company, ITEK Pty Ltd. ITEK will then assess the intellectual property and may seek its protection and commercialisation.

If the intellectual property is commercialised, the revenue from such commercialisation will be shared with staff and students (who have signed a Student Project Participant Agreement) who created the intellectual property. This will be determined in accordance with the University's Intellectual Property policy.


Infringements of IP

If you wish to use intellectual property owned by a third party, you must ensure that you have a right to do so. This right may be by way of written permission from the owner, a licence agreement or, in the case of copyright, statutory licences or exemptions from infringement provided under the Copyright Act. Infringement of intellectual property rights of a third party can result in civil or criminal liability to the University as well as to the individual.

If you are contacted by a third party alleging breach of their intellectual property rights, you must immediately refer the matter to the Solicitors or, in the case of copyright, to the University's Copyright Officer

Similarly, if you are aware of any third party infringing the University's intellectual property rights, you must also bring this to the attention of the Legal Officers.

 

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