Blog

How secure are your creations online?

15 Jul 2015

Topics

  • Business Law
  • Intellectual Property

Your creations can flourish in the vast World Wide Web, but you should be savvy about protecting them against exploitation.  And it’s not as tricky as you might think! However, the right creation should be matched with the right tool.  Let’s briefly look at some of them.

Trade Marks

A trade mark is a word, phrase, logo or picture (among others), used to distinguish the goods or services of your business from those of another.  A trade mark is the identity and brand of your business and a way to show or remind your customers or clients who you are. A recognisable and reputable brand name can take years to establish and may be crucial to a business with an online presence. For such businesses, it may be advisable to register the trade mark.

A trade mark can be registered with IP Australia. Once registered, others can be prevented from trading with that trade mark (or similar) in relation to similar goods or services.

Registration is not essential to use and protect your trade mark but it is a lot more difficult to enforce a trade mark that is not registered.

If you are developing a trade mark, it pays to make sure that other traders are not already using a similar trade mark in a similar class of goods and services. This is necessary to ensure you avoid infringing another’s trade mark.

Copyright

Copyright applies to creative concepts such as a song, a piece of art, a film, a photograph, a literary work, a sound recording and others. Importantly, it covers all written text that you place on the internet which is your original creation.  In Australia, copyright is free and automatic (for a certain period of time) but cannot be registered.

Copyright gives the owner the exclusive right to reproduce, perform, publish or broadcast the copyrighted work.  The copyright owner can also licence or sell these rights to others.  For example, an author can licence the right to reproduce her novel to a publisher in return for royalties.

Copyright goes hand in hand with ‘moral rights’, which include the right to be credited for your work, to not have your work falsely attributed and to not have your work treated in a derogatory way. Such rights cannot be sold or transferred away.

Importantly, you cannot copyright an idea or information, but rather the presentation of that information (but see discussion below about confidentiality agreements). This means that once someone has read your information there is nothing in copyright law to stop them using what they have read, so long as they do not reproduce the actual written words.

Where your material is freely available online, it can be easy for others to infringe your copyright.  As easy as it is to infringe, it can be very difficult to enforce your rights: you may not even know that your material is being copied and reproduced or you may not be able to track down the infringer. If you do, you may commence proceedings against the infringer but this is expensive and slow.

Very recent amendments to the Copyright Act allow copyright owners to apply for an injunction against carriage service providers (ISPs) to disable access to a foreign website that has the primary purpose to infringe copyright, however, this measure is expensive.

For this reason, it is often cheaper and more effective to prevent infringement in the first place by placing safeguards on the online material. There are lots of ways to do this, such as by placing watermarks on your photographs, making available only select extracts of your work or disabling the “right-click” function.

You can become a member of a collecting society which will licence your copyright material to others and collect licence fees (or royalties) on your behalf.

There are some situations where a person does not require the permission of the owner of the copyright to use copyright material, but these are limited and generally relate to fair dealings such as reporting the news, reviews or engaging in comedy or satire.

Please visit the Australian Copyright Council for useful information about copyright.

Confidentiality Agreement

An idea or technique may not be protected by copyright, but it can be protected contractually. Prior to disclosing your idea to another person, you may ask them to sign a confidentiality agreement which expressly prohibits the recipient from disclosing or exploiting your idea.  Of course, the best way to protect an idea is to not disclose it at all, but this may not be practical where you require the services of another person (such as a manufacturer, designer, or employee).

A confidentiality agreement is a vital tool for most start-up businesses in order to demonstrate your awareness of, and eagerness to protect, your confidential information.

Public Domain

There can be confusion about what it means when something is in the ‘public domain’.

Content that attracts copyright automatically (such as a photograph) does not lose its copyright merely because it is made publicly available online.  It will lose its copyright when the copyright expires (generally, 70 years from when the creator died or when the material was first published) after which you may use it.  Alternatively, you may be able to use the material under a licence (contractual, creative commons or statutory).  For example, you may go directly to the copyright owner and ask for permission to use the material.  However, you should not assume that just because the content is online, it is not protected by copyright.

Confidential information, on the other hand, does lose its confidentiality when it is made publicly available.

Consider the following example:

  • You have an idea for a new online service
  • You design a logo for the business and write a detailed business plan
  • You engage a software engineer to turn the idea into a product and ask him to enter into a confidentiality agreement to prevent him from disclosing it to others
  • Excited at the prospect of the idea, you go online and describe your idea in a public forum

In this case, the logo you’ve designed automatically attracts copyright. Once it is used to distinguish your business, it will also become a trade mark capable of being registered. If you publish the logo online, both copyright and trade mark laws protect that logo.

The business plan may be protected by copyright but the idea detailed in the business plan is not.  The confidentiality agreement can prohibit the software engineer from exploiting your idea. However, as soon as the idea is in the public forum, anyone who has read your idea online could exploit it. It is therefore important to refrain from disclosing your ideas online and, wherever possible, insist that potential recipients of your idea enter into a confidentiality agreement before you disclose it.

Conclusion

A multitude of issues affect those who operate their businesses online. We have only touched the surface of the various intellectual property protection mechanisms you could consider.  Other issues might include the international protection of those ideas and trade marks, the use of online terms and conditions, protecting privacy online, patents and so much more.

Our experienced Intellectual Property team are able to help with any queries you may have.