1. 16 Intellectual Property © Oxford University Press, 2007. All rights reserved.

2. Intellectual Property Learning Objectives: Understand what is intellectual property; Explain what is meant by the term copyright; Understand how copyright may be infringed; Explain how a trademark operates; Describe the patent application process; Understand the law on registered designs.

3. Intellectual Property cont... Copyright: What is it? Copyright is one of the most common forms of intellectual property right and is created when a person or entity produces an “original work”. Originality No formal registration process Duration:- Life of the author plus 70 years.

4. Intellectual Property cont... Copyright Infringement: How does it occur? Can be either direct or indirect. Substantial reproduction of the work Test of objective similarity: Hart v Edwards Hot Water Systems (1985) 61 ALR 251.

5. Intellectual Property cont… Television broadcasts Channel 10 v Channel 9 (“the Panel Case”) High Court held that copyright does not subsist in each individual image and copying an individual image or frame could not constitute a substantial taking for the purposes of infringement.

6. Intellectual Property cont... Copyright Defences: What is available & how do they apply? fair dealing for the purpose of research and study (s.40 Copyright Act); fair dealing for the purpose of criticism or review (s.41 Copyright Act); and fair dealing for the purpose of news and reporting (s.42 Copyright Act).

7. Intellectual Property cont... Trade Marks What is a Trade Mark? The main elements of a trade mark include a sign that is in use or intended to be used and is capable of distinguishing goods or services. Key test of “distinctiveness”.

8. Intellectual Property cont... How does one obtain a Trade Mark? Registering a trade mark involves a number of steps as outlined in the following diagram.

10. Intellectual Property cont... How is a Trade Mark infringed? Direct Infringement:- 120(1) Indirect Infringement:- Section 120(2) Well-known Trade Marks:- Section 120(3)

11. Intellectual Property cont... Patents What is a patent? A patent provides the most exclusive form of intellectual property and are given to inventors who satisfy the following conditions:- a manner of manufacture; novelty; inventive step; utility; and be not in secret use.

12. Intellectual Property cont... Test of patentable invention. The threshold test has been interpreted to mean that subject matter of the patent must not already exist or be so obvious to a person skilled in the relevant field or art.

13. Intellectual Property cont... How is a patent infringed? S.17 Patents Act supply or sale of infringing material, importation and trafficking, use of subject matter without the consent of the patent holder and making infringing copies.

14. Intellectual Property cont... What Defences are available? Limited defences are available for an action of patent infringement:- use of invention in foreign vessels, aircrafts and prior use: s.118-119. innocent infringement: s.123.

15. Intellectual Property cont... Designs What is a registered design? Designs Act 2003 (Cth) streamline the application and registration process for registered designs; single design or multiple designs in a single application consistent enforcement and dispute resolution procedures registration period reduced from 16 years to 10 years.

16. Intellectual Property cont... How does one register a design? Test of new and distinctiveness; Designs Registrar Formalities Check; Registration Details contained in Register Certificate of Registration