28 July
Photo by Tingey Injury Law Firm from Unsplash

Dot your I’s and circle your C’s. Intellectual Property and Copyright, what is the difference?

What is IP? 

Intellectual Property or “IP” is an umbrella term referring to creations of the mind such as inventions and artistic works. This could be an idea for a new piece of technology or research, or it could be a literary work. IP is really property of the mind and includes anything original you could create. 

IP laws protect those creations. They prevent persons other than the creator copying and making a profit from an idea that is not theirs: in other words, stealing the property of someone else’s mind. IP laws can also protect the reputation of the original creator and the value of the original creation. This area of law covers many industries from agriculture to the arts, technology to fashion. With such a wide-ranging subject matter, IP Law has evolved into five key areas:  

  1. Patent

    A patent, gives you exclusive commercial rights to your invention. An invention may be a device, substance, method or process that is new, useful and inventive. Patents can vary in length from 8 – 25 years. A typical example is when a pharmaceutical manufacturer applies for a patent when they are developing a new drug.  
  1. Trade mark

    A trade mark is more than just a logo, it is a way of identifying your unique product or service as yours. It could be a number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of these. A registered trade mark provides you with exclusive rights to use, sell and licence that trade mark. However, trade marks are ‘use it or lose it’: they can be removed in certain circumstances if you don’t use them.   
  1. Design 

    Design rights protect the visual appearance of a whole product that is physical or tangible, manufactured or handmade, and produced on a commercial scale. In Australia there is a two-step process (registration and certification) to own the exclusive right to a design and be able to enforce that right.  
  1. Trade Secret 

    A trade secret is valuable knowledge that you don’t want to be shared with the market, including secret formulas, processes and methods used in production. There is no legislation guarding trade secrets. They are usually protected by confidentiality agreements. A famous example is the eleven secret herbs and spices the KFC Colonel keeps secret.  
  2. Copyright

    In the context of the arts, copyright is the branch of IP law that is highly relevant.  

What is Copyright? 

Copyright is a bundle of rights that creators have over their creations, which protects them from being copied or used without the permission of the creator. Copyright does not protect ideas but protects the material expression of ideas. It is separate to the physical work. Clear as mud? Don’t worry, we’ll explain. 

Let’s look at an example. Say you are an artist and you sell a painting at a gallery. The idea to paint a landscape is not protected by copyright, nor is the idea to do it in a certain style. But once the idea has been translated into a painting, from the mind to the canvas, copyright protects the originality of that work. When you sell the painting, the buyer takes the physical painting with them, but they do not take the copyright. It remains with you, the artist. This means the person who now owns the physical painting cannot copy, alter or use the image on websites or t-shirts without your permission. But you can! And you can give other people permission to use those rights (this is called a licence).    

In Australia, copyright is an automatic right that, depending on the subject matter, generally lasts for 70 years after the death of the creator. There is no need to register, and licensing revenues can be used for beyond a lifetime.  

Who has the Rights? 

When thinking about copyright, it is always important to ask who owns the rights. How do you know who owns copyright in a work? The answer is: it varies depending on the type of artwork, performance or recording. You can read more about Copyright in our info sheet.

Arts Law can give you further advice about your copyright or look over licensing agreements. Submit your details here and we can arrange for you to talk copyright with one of our lawyers. 

You can find resources on copyright and much more here.