RATIONALE: Intellectual property is intangible in that it cannot be held in possession, or occupied but the rightful owner needs to be protected. The justifications for legal protection of intellectual property are twofold. First, it is in the public interest to encourage creative intellectual endeavour. Second, it is fair that a person who had created an invention or a literary work should have it protected, the reason being that another person should not be able to reap the rewards of another person's labour.

THE LAW: The Copyright Act 1968 provides automatic protection to the rightful owner of a work.

Part III of the Copyright Act draws a distinction between two major categories of works: Those that are original literary, musical, dramatic or artistic; and subject matter other than works, such as sound recordings, cinematographic films and published editions of works. Part IV of the Copyright act concerns subject matter including sound recordings, movies, television and sound broadcasts, and published editions of works.

Section 31 of the Act provides the owner of the copyright the exclusive right:

i) to reproduce the work in a material form;

ii) to publish the work;

iii) to broadcast the work;

iv) to broadcast the work;

vi) to make an adaptation of the work;

DEFINITION: "...it is a right to prevent the unauthorised reproduction by a third party of the tangible form in which a person has chosen to express his ideas, for example, in a book, a musical composition, a painting or a cinematograph."

by Ricketson

It is important to stress that the work must be expressed. Ideas as such cannot be subject to copyright law.

The term literary work has a much wider definition in respect to copyright than it does in a conventional sense. The issues of quality and creativity are not deemed relevant. A computer programme, a table or compilation are all regarded as literary works. Even columns of birth and death announcements in a newspaper, and published results of winning bingo numbers are considered literary works and as such are protected by copyright laws.

A dramatic work also includes choreographic shows (eg. ballet). The definition also extends to a script or scenario for a film but does not include the film itself which is covered by a different area of copyright.

There is no definition of musical work in the Act and consequently, the ordinary meaning of the expression applies.

A sound recording covers tapes, cassettes, CDs, and any other device in which sounds may be embodied. For copyright laws to be imposed the recording must be made in circumstances where one of the following conditions applies:

The Copyright Act defines cinematographic film as meaning the aggregate of visual images embodied in an "article or thing" ( eg. videotape, laser disc, film, etc.) The soundtrack to a movie is also protected within this part of the Act. Copyright exists in cinematographic film providing that the criteria mentioned above in sound recordings is met.

There is no tricky definition for television and sound broadcasts therefore the usual meaning of the words applies.

The definition of published edition is any new edition of a previously published work that is not simply a reproduction of the original work.

HELD: The engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission or consent or licence in the person making the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement. The defendants were entitled to use the plans in question to complete the project.

HELD: A work of artistic craftsmanship is one which must exhibit some aesthetic merit and also some display of craftsmanlike skill. The object must have been intended to be beautiful in itself, even if having some utilitarian purpose. The role of these rods determines their whole appearance; they are not intended to be beautiful in themselves, nor was craftsmanship involved in cutting the wood to the required size. The idea behind the rods may have been most original but the idea is not protected by copyright, only the expression thereof, and there is no protection here.

HELD: A single word or even a title cannot of itself by a literary work within copyright concepts. The word may be invented and original but has no meaning in itself. The function of a literary work is to afford pleasure in instruction, or furnish information in the form of literary enjoyment.

HELD: The copyright is in the person who has clothed the idea in form, and the owner of the idea has no rights in the product. If an author employs a shorthand writer to take down a story word for word, the language of the author does not become that of the transcriber, who is in fact only a tool with no ownership of any copyright. In this case the particular form of language in which the stories were conveyed to the public was the language of the journalist.

HELD: A substantial part of a musical work is an 'essential part; if the part taken is recognisable it will be a substantial part.

HELD: There was no element of originality of skill in the order in which the tables were arranged. They were not composed for the diary but were commonplace information.

HELD: The plaintiff had not established a sufficient reputation in the functional features of her product to found an action. The 'work' was not protected by copyright as the plaintiff's skill in manufacturing the 'moving sand landscapes' was not that of artistic craftsmanship, since her action did not cause the landscapes but rather moving the product around did. Artistic craftsmanship must be confined to static aspects of a work.

HELD: Copyright is not available to forms of expression dictated solely by functional considerations, but in this case the documents have their own character, their own form of expression and, in a sense, tell their own story to the user. The preparation of the forms required a degree of concentration, care, analysis, comparison and a certain facility in using and adapting the altered forms to a composite 'one write'.........who cares, it was protected anyway.

HELD: The die or mould was an engraving. The purpose of copyright is to protect the skill and labour of the craftsman in cutting and shaping (engraving) the plate to produce the intended design. The finished product was also an engraving as a 'print' of the mould; each disc is 'an image produced from an engraved plate'. The wooden models of the Frisbees were sculptures but the final plastic products were not, since sculpture is a branch of the visual arts especially concerned with the creation of expressive form in three dimensions, and discs produced by an injection mould process are not original models exhibiting any expressive form.

RATIONALE: The patent system provides reward for the inventor and encourages others in their endeavours to develop useful and novel products. It also forces public disclosure of an invention so that improvements can be made to it.

THE LAW: The law relating to patents in Australia is contained in a Commonwealth statute, the Patents Act 1990. This Act came into operation of 30 April 1991 and replaced the Patents Act 1952.

DEFINITION: A Patent is a limited monopoly throughout the country granted by the Crown to make, use, exercise and sell an invention and products produced therefrom for a period of sixteen years for a standard patent and for a period of six years for a petty patent.

The invention must be tangible in a commercial use, eg. new products and processes, or improvements on existing products and processes. It excludes mere ideas.

PATENTABLE INVENTIONS

Section 18 (1) says in part...

"..a patentable invention is an invention that, so far as claimed in any claim:

c) is useful

HELD: The patent was invalid because treating flour in such a manner does not and cannot have the claimed effect. The utility of an invention depends upon whether, by following the directions of the patentee, the result claimed can be produced.

HELD: The essential features of the invention were taken. The purpose of the vertical back plate was to provide good load bearing capacity, and the variation in the respondent's design did not affect this function. To read the specification too narrowly is to place too narrow a limitation on the invention and render the monopoly useless.

3. CONTINENTAL GROUP INC. [1986]

HELD: The only difference between the known types of drink containers and this is the inclusion of the prize viewable through the opening after emptying the contents. This difference is not sufficient to confer novelty.

RATIONALE: Design statutes became prominent in the late eighteenth century in England, which coincided largely with the incredible progress of the textile industry. The legislation gave exclusive rights to the designer to print their designs. Today, designs can be registered in respect of many articles (eg building materials, jewellery, cutlery and other domestic items).

THE LAW: The Designs Act 1906 provides protection for the visual form of articles that can be produced.

DEFINITION: Section 4 defines a 'design' as follows:

"design" means features of shape, configuration, pattern or ornamentation applicable to an article, being features that in the finished article, can be judged by the eye, but does not include a method or principle of construction.

Before an article can fall under the ambit of the Designs Act several prerequisites must be satisfied:

HELD: The protection afforded by Designs Act is for the visual appearance of the design, in which there must be some novelty or originality. The appearance of the castor here differed very little from previous designs; the only interesting feature was the method of construction.

HELD: Designs are applicable to the purpose of ornamentation, pattern, shape or configuration of an article. A design is not an article made according to a particular pattern or shape, much less a method of making such an article, or a method of achieving an end by the use of such an article. A design proprietor gets a monopoly in the appearance of a thing not the thing itself.

RATIONALE: A trade mark or brand name is a letter, a number, a word, phrase, sound, smell, shape, logo, picture. aspect of packaging or combination of these used to distinguish the goods or services of one trader from those of others.

The aim is to prevent a trader from claiming or creating the impression that the trader's own goods or services are those of another. Trade marks are protected at common law by the action of "passing off" and by the Trade Marks Act 1955.

"The fundamental rule is that one man has no right to pass off his goods for sale as the goods of a rival trader, and be allowed to use names, marks, letters or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person"

THE LAW: The law relating to trade marks in Australia is in the TRADE MARKS ACT 1995. This Act repealed the Trade Marks Act 1955.

There are 5 elements required to successfully prove passing off: