Guide to IP Protection
In this post I will break down everything related to intellectual property (IP). I will start with a general working definition of what IP is, who owns IP and ways in which IP rights can be protected. I will then leave a quick-start guide for how you can work out which form of IP protection would be best for you depending on the creation you want to protect.
What is Intellectual Property?
Put simply, intellectual property refers to creations stemming from your skills and knowledge within your mind. These include physical inventions, literary works, computer code, designs and images. Intellectual property protection rights are the legally enforceable protective mechanisms that you can use to protect your IP from certain uses by third parties, whether it be to prevent other parties from stealing your inventions or to protect your literary work that you have laboured over for years.
IP protection rights are important for a number of reasons. Morally-speaking, you should be able to protect what you have put effort into creating without others stealing it from you. IP rights are like the laws that protect you from people stealing your physical property or your money.
In a commercial context, IP protection rights are important in incentivising businesses to innovate. Businesses will not innovate unless they can be assured that their IP is protected by law in a country where the law can be enforced in a court otherwise there is little incentive to invest large sums of money and resources in inventing new things.
Who Owns Intellectual Property?
Generally, IP is owned by the creator. However, this rule is not absolute. There may be circumstances where IP ownership is agreed upon in a contract in such a way that the creator of the IP does not own it. A common example of this is in relation to the employment context where employment contracts will often stipulate that any IP created by employees will be the property of the employer.
Types of IP Protection
There are many types of IP protection which vary according to the type of IP you are trying to protect. Not all methods of IP protection are 'automatic' in the sense that they don't automatically come into existence as soon as you create the work; with some you have to register your creation in order for the protection to come into effect.
Here are the main methods of IP protection:
- Trade marks
- Registered designs
- Trade secrets
IP Australia provides some useful information about each type of IP protection:
- Patents protect inventions and new processes. They are particularly useful if you do not want other businesses or individuals copying your inventions or a process you have devised. Patents are not automatic and have to be filed. The length of patent protection depends on the type of patent you have filed for. In Australia, for example, standard patent protection lasts for up to 20 years from the date of filing your application or 25 years if you have filed a patent for a pharmaceutical substance.
- Trade marks help distinguish the goods and services of a particular business from others. For example, Coca Cola trade marks its logo and brand name 'Coca Cola' to help distinguish its cola drinks from that of its competitors. You can use trade marks to protect things such as logos, letters, colours, words, phrases, scents, sounds and aspects of branding. Trade marks are not automatic and have to be applied for.
- Registered designs are used to protect the visual appearance of a product. They need to be registered and are not automatic.
- Copyright protects the expression of the creator's ideas, whether it be expression in written form, songs, movies, art or computer code. Note that copyright does not protect the idea itself; it only protects the way in which the idea is expressed. Copyright lasts for 70 years from the date of creation and is automatic, meaning you do not have to register it in order to be protected by it.
- Trade secrets protect confidential information within a business. These can include things such as secret formulas and methods of manufacture. They are automatic in the sense that a trade secret does not need to be registered; ultimately it is up to the business to protect that confidential information and make sure that it doesn't get leaked to competitors!
Other means of IP protection that also arise include the following:
- Plant breeder's rights
- Geographical indications
- Circuit layouts
Quick-Start Guide: Which Form of Protection is Best for Me?
Now that you know about the different types of IP protection, you might be wondering which method is best for the intellectual property you are trying to protect.
I'd encourage you to ask the following questions:
- What am I trying to protect?
- Which form of protection?
- What are its limitations?
Let's run through some examples.
If I want to protect this blog post, I would opt for copyright protection because copyright protection is used to protect the expression of ideas. Thankfully copyright protection is automatic so I don't need to register it anywhere. What this would do is give me a legally enforceable right against other parties should they plagiarise my blog post or use it in their own work without properly acknowledging me as the author. While copyright is limited in the sense that it won't prevent people from stealing my post, at least I would be able to get some kind of remedy. It also won't prevent others from talking about the some ideas I have discussed. But I don't mind; I like reading other people's blogs!!
What if I wanted to protect a 'recipe' for a new pharmaceutical drug? Well, I might decide to patent the recipe to prevent others from replicating it. While this sounds excellent, it might have a bit of monetary risk involved if my pharmaceutical drug is new on the market and I don't know if it will take off. Further, by filing a patent, I am required to share my recipe with everyone. Maybe I don't want to do this.
Instead, I might opt for keeping the recipe as a trade secret similar to how Coca Cola has protected its recipe for cola for all these years. At least I don't have to tell anyone about what's in it; I just have to make sure that the details of my recipe don't leave the four walls of my manufacturing plant. However, this is much easier said than done.
I think it's fair to say that the world of IP protection is rather colourful. Not only do you need to know the law surrounding each method of protection; you also need to have some commercial awareness when making these decisions so you know which method of IP protection will best suit your business and give you the best competitive advantage. While some methods of IP protection might sound excellent in theory (e.g. trade secrets), you need to see if you have the resources and means to adopt these means of IP protection.
 World Intellectual Property Organisation, 'What is Intellectual Property' (online, 2022) <https://www.wipo.int/about-ip/en/>.
 IP Australia, 'Other Types of Trade Marks' (online, 1 September 2020) <https://www.ipaustralia.gov.au/trade-marks/understanding-trade-marks/types-of-trade-marks/other-types-trade-marks>.
 IP Australia, 'Types of IP' (online, 2022) <https://www.ipaustralia.gov.au/understanding-ip/getting-started-ip/types-of-ip>.
 IP Australia, 'Types of Patents' (online, 26th August 2021) <https://www.ipaustralia.gov.au/patents/understanding-patents/types-patents>.
 Business.gov.au, 'Intellectual Property' (online, 19th July 2021) <https://business.gov.au/planning/protect-your-brand-idea-or-creation/intellectual-property#:~:text=Intellectual%20property%20(IP)%20is%20the,opportunity%20to%20commercialise%20their%20creations.>.