There are some aspects of the intellectual property regimes that are common to all the regimes. Some of the remedies available for alleged breaches of intellectual property rights fall into this category. In addition, there are some other laws that affect the intellectual property laws in a relatively uniform manner. For example, the restrictive trade practices provisions of Part IV of the Competition and Consumer Act 2010 (Cth) apply equally to all owners of intellectual property, subject to one or two variations.

Intellectual property is now a term that is widely used within the legal profession and society at large. Despite this extensive use, a comprehensive definition of the term remains elusive, especially as some forms of ‘intellectual property’, such as ‘sweat of the brow’ copyright, are not intellectual and others, such as confidential information, are very arguably not property. On the other hand, most forms of intellectual property are clearly regarded as just that – forms of property that are recognised as flowing from the exercise of intellectual activity. For example, copyright, designs, patents, plant breeder’s rights, and registered trade marks are expressly stated by legislation to be property. In addition, various statutory requirements evidence the need for the exercise of intellectual activity to obtain that property status. For example, patent applications must demonstrate an inventive step before they acquire registration and literary, dramatic, musical and artistic works must be original in order to qualify for copyright protection.

This chapter examines the ways in which a copyright work can be exploited. It also examines the different ways in which copyright can be infringed and the defences that a party may rely on to escape liability for an act that would otherwise be infringing.

A patent specification is a public instrument that contains the patentee’s unilateral statement to the public of what are claimed as the essential features (‘integers’) of the invention. The grant of the monopoly rights in a patent are balanced by the disclosure of the invention to the public.

A typical passing off situation is one in which the defendant represents that its product originates from or is in some way associated with the plaintiff or the plaintiff’s business when that is not the case. It may do this by adopting some business indicia of the plaintiff, such as an identical or similar business name or sign associated with the plaintiff’s product; but, as we will see, there are many different scenarios that fit that general description of passing off and the tort has also developed well beyond that basic proposition. We will also see that the understanding of the tort is complicated by its historical evolution. Its complicated history relates to the fact that the tort was recognised by both common law courts and courts of equity but they exhibited considerable differences in both their approach to the theoretical underpinnings of the tort and their approach to remedies for passing off. These historical differences continue to inform and complicate the development and application of the tort. An understanding of that history is essential to understanding the present-day formulation of passing off. It is also essential to understanding the various functions of registered trade marks, a statutory system of intellectual property that evolved from the tort of passing off.

There are a number of different criteria that a creation must meet in order for it to be protected by copyright law. These are the requirements of subject matter, material form, connection to Australia, and originality. While copyright arises automatically on creation, a work will only be protected if it satisfies these different criteria (or at least those criteria that apply). The first threshold that must be met is that the creation must fall within one of the categories of subject matter recognised under the Copyright Act 1968 (Cth). Copyright law divides subject matter into two general categories: ‘works’ (literary, dramatic, musical and artistic works) and ‘subject matter other than works’ (sound recordings, cinematograph films, sound and television broadcasts, and published editions of works).

The principal theme that emerges in intellectual property regimes, with the exception of trade marks, is to vest ownership in the creator, but to vary this where creation is in the course of employment or pursuant to some other express contractual arrangement. The application process for obtaining the grant of a standard or innovation patent was described in chapter 9. In this chapter we discuss a variety of matters that relate to the entitlement to apply and be granted a patent, ownership and the allocation of rights, including the grant of interests in the Crown and compulsory licences, and the role of the Register.

A patent is granted by the Crown and confers private property rights in the form of a monopoly for the invention of products, methods and processes in all fields of technology. The invention could relate to all manner of things, including pharmaceutical products and processes, engineering products and processes, medical and therapeutic devices, micro-organisms, computer technologies and nano technologies. These things all have in common some human intervention with nature to bring about some physical change or physically observable effect. A patent grants exclusive rights to the patentee in relation to the invention in return for public disclosure of the invention.