What is Intellectual Property?
We have all heard the term intellectual property but do you know what it really means? In this blog, I start by defining intellectual property, and then identify some of the forms of IP that are likely to be important in your business.
The Intangible Assets of Your Business
Let’s step back for a minute, and take a look at the legal definition of property. Australian law recognises two different types of property – real property and personal property.
Real property means interests in land, and the buildings, structures and fixtures on the land. A house is real property. An office building is real property. A lease over an office is real property because even though you don’t own the office, you own the right to occupy it. At its simplest, real property is something immoveable, concrete, fixed in place, that you can’t pick up and walk away with, but it is not just the land and buildings, it is the legal rights attached to the land and buildings as well.
Personal property covers belongings that have a physical existence that you can hold and move around, such as your clothes and your car, your computer and your office furniture. These tangible items have an existence that is independent of the law, but the law controls the concept of ownership. Personal property also covers legal rights that have no physical existence, and that are actually created by the law. Without the law, these rights that you can own would simply not exist. This includes intellectual property rights, and things like shares in a company, or debts.
What are intellectual property rights?
The World Intellectual Property Organisation (WIPO) defines IP as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”
IP Australia says that IP is “the property of your mind or proprietary knowledge. Basically, the productive new ideas you create. It can be an invention, trade mark, design, brand, or the application of your idea.”
Intellectual property rights are the creator or owner’s right to control when, where and how their intellectual property is used.
Let’s look at the most common types of intellectual property in more detail.
Copyright = Your Creative Content
Every time you write a blog, record a video or FB live, create a graphic image, make a post on social media, you are creating intellectual property. Luckily, copyright protection is automatic in Australia, so the moment you document that creative concept – whether on paper or electronically – your copyright comes into being. You don’t need to register it, although popping the © symbol on it with your name and the year can help notify people of your ownership. (Note that in the US, for example, the law is different, and copyright material needs to be registered before the law will protect it.)
So what is copyright? It is actually a bundle of legal rights, including:
- the moral right to be identified as the owner of the work
- the right to stop other people from copying, broadcasting, publishing or performing your work
- the right to licence your work (that is, allow other people to use it in exchange for a fee or other benefit).
Copyright lasts for your lifetime, and another 70 years after that! This means, if you create some really popular content, such as a best-selling ebook, your heirs will continue to benefit from it. This is another reason why it is important to be aware of the IP assets owned by your business – especially when you are writing your will.
Copyright is designed to protect literary and artistic works. This includes pretty much all the content you create as an online entrepreneur, from blogs and ebooks to graphic images to videos and webinars. However, it only covers your expression of the material. It does not cover ideas, information or techniques – so someone else may be able to convey the same thoughts as you, but they need to put it into their own words so it is no longer recognisably yours (unless they have paraphrased something which is unique, important or essential to the core of your work, which may still be protected). Copyright also does not protect names, titles and slogans… which is why we have trade marks.
Trade Marks = Your Business Reputation
Think about the elements that make up your brand for a moment. How do your clients instantly recognise that it is you when they see you on social media? Your name, your logo, your tag line, your colours, the design of your graphics, the backdrop you use in your videos…all of these things are important aspects of your business reputation, and they are all protected (in one way or another) by law.
First, let’s talk about unregistered trade marks. From the moment you start using a business name, product name, tag line or logo to sell products or services, you start building up an association between that representation and your business. You start building up goodwill (which is another form of intangible personal property – another asset of your business). In short, you start building up an unregistered trade mark. You can make this even more obvious to the public by using the ™ sign on names, phrases and graphics that are unique, strongly identifiable and important to your brand recognition. This puts people on notice of your ownership. (Although the ownership exists without it, marking it strengthens your claim.)
An unregistered trade mark is protected under Australian Consumer Law and the common law offences of misrepresentation, misleading and deceptive conduct and passing off. I will go into these in more detail in a future blog. Basically, you have to prove that you have built up a reputation in the marketplace around this name, and that by using it, the other person is trading on (benefiting from) your reputation. If the court agrees, you can make them stop, account for any profits they have made, or pay you damages for any loss or injury you have suffered.
When you register your trade mark, you have the exclusive right to use it in the country where it is registered. You don’t need to prove anything – it is yours, no-one else has the right to use it (unless they can prove they were using it first, in which case you might have to continue co-existing). A registered trade mark is identified with the ® sign. Once you have registered an Australian trade mark, the process of registering it internationally is simplified.Trade Secrets, Designs and Patents = Your Innovative Products & Processes
Another kind of intellectual property is contained in your inventions, the way you do things or design things that are unique and have not been seen on the market before. This can include:
- Trade secrets: things about how you do business, your methods and processes, that no-one else knows (other than those bound by confidentiality agreements or licenses)…
- Designs: protect the way a product looks (be aware that this needs to be registered before you commercialise the product or you could lose your intellectual property)…
- Patents: protect the way a product functions (be aware that if you tell anyone about your innovation – other than a patent attorney – you might lose the right to apply for a patent)…
How I can help…
Hopefully you now have a much better understanding of the kinds of intellectual property assets owned by your business. If you have any questions, you might like to book an IP Strategy Session so I can help you work out what you need in order to keep your IP assets safe.