Chapter 17 - Intellectual property law. At the end of this chapter you should understand: ‘intellectual property law’ and the philosophy behind the concept of protecting intellectual property; how to distinguish between the products that are protected by copyright, patent, trade mark and design legislation; the definition of the term ‘copyright’ and explain how the law relating to it protects the physical expression of ideas;…
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Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev 2-1 Intellectual property law Chapter 17 Copyright â 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-2 Learning objectives At the end of this chapter you should understand: • ‘intellectual property law’ and the philosophy behind the concept of protecting intellectual property • how to distinguish between the products that are protected by copyright, patent, trade mark and design legislation • the definition of the term ‘copyright’ and explain how the law relating to it protects the physical expression of ideas • how the Designs Act 2003 (Cwlth) protects the visual form of articles • the definition of the term ‘trade mark’ and the operation of the Register of Trade Marks Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-3 Learning objectives (cont.) • the definition of the term ‘patent’ and outline the requirements for patentability • the tort of passing off • the elements in a common-law action for breach of confidence in relation to confidential information • the remedies for breach of copyright, unauthorised use of trade marks, designs, patent infringement, passing off and breach of confidential information • the actions for passing off, infringement of trade marks and breaches of s.18 of the Australian Consumer Law Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-4 Introduction • Intellectual property law deals with the legal rights that relate to intangible property such as: – copyright – registered designs – trade marks – patents • Intellectual property is not capable of being possessed like other personal property • May have significant commercial value Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-5 Copyright • Copyright – The right to prevent the unauthorised reproduction by a third party of the tangible form in which a person has chosen to express his or her ideas • Statute – Copyright Act 1968 (Cwlth) • Substance of statute – Protects the physical expression of ideas (not the idea itself) Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-6 Copyright (cont.) Subject matter (categories) Original works Literary Musical Dramatic Artistic Other than original works Sound recordings Films Published editions of works Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-7 Examples of copyright in original works • Literary works – Books, tables of data, computer programs • Dramatic works – Ballet • Artistic works – Paintings – Sculptures – Drawings Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-8 To be original • Copyright subsists in ‘original’ works • To be original: – it is not necessary for the work to be first of its kind – the work must originate with the author – the work must be more than a copy of some other material – author must have used some skill or experience in making the work/product original Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-9 Ownership of copyright • Author generally owns copyright (author is person responsible for compiling the work) • Employer owns copyright where author is under contract of service or apprenticeship • Person who commissions and pays for work • Maker of sound recording or film Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-10 Duration of registration of a trade mark Initially for 10 years, then renewed indefinitely for successive periods of 10 years Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-30 Why register a trade mark? • Protect goodwill associated with trade mark • Exclusive rights to use trade mark • Asset included in business valuation • May assist with franchising and licensing Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-31 Infringement of trade marks • Using mark similar to registered trade mark, in order to deceive • Tort of passing off Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-32 Remedies for infringement of trade marks • Injunction • Damages: – Loss sustained – Account for profits Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-33 Trade Marks Amendment Act 2006 (Cwlth) • Matters addressed in the Act: – 'Absolute first use rule' introduced – New ground to opposition to registration is that the application to register was made in 'bad faith' – Greater recognition of the international trend to protect famous trademarks – Changes to non-use provisions – Provision for undertakings regarding customs notices Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-34 Patents • Patents Act 1990 (Cwlth); Patents Cooperation Treaty 1970 Inventor has sole and exclusive right to exploit and to authorise another to exploit his/her invention • Subject matter involves: – Manner of manufacturing – Novelty – Practical use • Examples of inventions: – – – – Machines Drugs Processes Treatments Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-35 Application for patents • Through Patent Office • Prerequisites: – Disclosure – Prove application meets the requirement of being ‘novel’ – Tested against publications (written, oral or in use) anywhere in the world Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-36 Duration of protection • Innovation patent: – Replaces petty patent – Maximum of years • Standard patent: – 20 years Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-37 Infringement of patents If invention is copied by manufacturing or supplying goods whose use would infringe the patent Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-38 Defences to infringement of patents At date of infringement, defendant was not aware of existence of patent Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-39 Remedies for infringement of patents • Injunction • Damages: – Loss sustained – Account for profits Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-40 Tort of passing off Person seeks to pass his/her own goods or services off as the product of a more successful competitor Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-41 Elements of tort of passing off • Misrepresentation is made: – by a trader in the course of trade – to prospective customers of the trader, or ultimate customers of goods or services supplied by the trader – calculated as injuring the business or goodwill of another trader Must cause actual damage to the business or goodwill of the trader who is suing Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-42 Action for breach of confidential information (common law) • • • Substance: Restrains a person from using confidential information obtained from another, when they not have the consent of the other party Subject matter: – Information has nature of being confidential – Information received in circumstances where obligation of confidence is expressed or implied – Information communicated to a third person without permission Examples: – Trade secrets – Government information Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-43 Remedies for infringement of confidential information • Injunction • Anton Piller order • Damages Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-44 ... property law Chapter 17 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev • 2-2 Learning objectives At the end of this chapter. .. Barron, Fundamentals of Business Law 7Rev • 2-1 0 Rights given to owner of copyright Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law. .. passing off, infringement of trade marks and breaches of s.18 of the Australian Consumer Law Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business