Intellectual Property

Intellectual property is protected through four primary legal mechanisms, each designed for a different type of creative or commercial output. They can operate simultaneously — software typically has protection under multiple types at once.

1. Copyright

• What it protects: the tangible expression of a creative idea — books, musical compositions, artistic works, films, sound recordings, and computer software
• Requirements: original; non-trivial; not a fact; not purely functional; fixed in a tangible medium
• How obtained: automatic and free in Australia from the moment the work is created — no registration, no fee, no copyright symbol required
• Duration: author's lifetime plus 70 years for most works; 70 years from publication for films and sound recordings
• Software: YES — software is unambiguously protected by copyright as a tangible expression of the programmer's creative and intellectual effort. The moment code is saved, copyright vests automatically. Copyright protects the specific code expression but NOT the underlying idea or algorithm.

2. Patents

• What it protects: inventions, mechanisms, processes, and devices that are both novel (not publicly known before application) and inventive (not obvious to a skilled person in the field)
• How obtained: must apply successfully under the Patents Act 1990; invention must be fully disclosed in the specification; disclosure before filing destroys novelty and makes a patent impossible
• Duration: 20 years from filing date
• Exchange: full public disclosure of how the invention works in return for 20-year monopoly right to use and license it
• Software: NO — software is not patentable in Australia or most jurisdictions. Courts have consistently held that software does not qualify as a "manner of manufacture" under the Patents Act. Mathematical algorithms — the logical foundation of all software — are also not patentable because they are discovered (they are part of the natural universe of mathematics), not invented.

3. Trademarks

• What it protects: brand names, logos, symbols, and devices that identify the goods or services of one organisation and distinguish them from others. More precisely, protects the reputation that customers associate with a particular brand.
• How obtained: registration required under the Trade Marks Act 1995. Unlike copyright, trademark protection does not arise automatically.
• Duration: 10 years, renewable indefinitely as long as the mark is used
• Software: for product names and logos only (e.g. "Microsoft Windows", the Apple logo) — not for the software code itself

4. Trade secrets

• What it protects: commercially valuable confidential information that gives a competitive advantage — no registration required; protection arises from the fact that the information is kept confidential and communicated only in circumstances creating a duty of confidentiality
• Duration: indefinite — but immediately lost if the information enters the public domain through any means
• Software: YES — software source code is a prime candidate for trade secret protection. The value often lies precisely in the fact that competitors do not know how the system works. Unlike patents (20 years), trade secret protection lasts as long as the information remains secret — potentially far longer.

Summary for software:

• Copyright: protects the code itself — automatic from creation
• Trade secret: protects source code from disclosure — as long as kept confidential
• Trademark: protects product name and logo only
• Patent: does NOT protect software code — not patentable

The general rule under Australian law is that intellectual property created by an employee in the course of their employment belongs to the employer, not to the employee who created it. This applies to all forms of IP including copyright in code, written materials, and design work.

Why this rule exists:

• Employers fund the conditions (salary, equipment, time, infrastructure) in which the work is produced
• Employers bear the commercial risk of the enterprise
• The employment relationship implies that the output of the employee's effort belongs to the employer who contracted for that effort

Practical implications:

• A software developer employed to write code does not own the copyright in that code — it vests automatically in the employer from the moment the code is written
• A developer who copies company code to a personal repository, or incorporates it in a personal project, infringes the employer's copyright even though they personally wrote the code

Two exceptions that assign ownership to the employee:

• Exception 1 — outside the scope of employment: if the work was created outside the employee's job responsibilities (personal time, personal equipment, problem unrelated to the employer's business), the work belongs to the employee. The critical question is whether the activity falls within the scope of what the employee was engaged and paid to do. This boundary is not always clear — a mobile developer who writes a personal mobile app on their own time may be in a grey area.
• Exception 2 — employer has agreed otherwise: if the employer has expressly agreed in writing (in the employment contract or a subsequent agreement) that the employee retains ownership, ownership passes to the employee accordingly.

Contractors: a contractor who is engaged to produce work retains ownership of the IP in that work unless the contract explicitly assigns it to the client. This is a frequent source of commercial disputes — an organisation that commissions a contractor to build a software system may assume it owns the code, only to discover the contractor retains copyright. IP assignment clauses must be included in all contractor agreements.

Key takeaway: you do not necessarily own everything you create. Ownership may rest with you, your employer, or your university. Check the specific circumstances and the contract.

Fair use (or fair dealing in Australian legislation) is the principle that limited use of another person's copyrighted work is permitted without payment or permission for specific purposes considered to serve the public interest. It represents a deliberate balance between creators' rights to benefit from their work and the public interest in access to information, education, commentary, and cultural participation.

5 permitted purposes under Australian copyright law:

• Research and education: a student who quotes from a textbook in an essay, a lecturer who reproduces a diagram from a technical paper in teaching slides, or a researcher who copies journal articles for their own academic analysis is exercising fair use. This is directly relevant to ICT students and professionals who regularly use published materials.
• Criticism and review: a technology journalist who reproduces a screenshot of an application interface to illustrate a critical review of its user experience is exercising fair use. A security researcher who reproduces malicious code in a paper analysing its behaviour may be exercising fair use for criticism purposes.
• News reporting: reproducing copyrighted material for the purpose of reporting current events — for example, including a company's promotional image in a news article about a data breach.
• Satire or parody: using a copyrighted work to satirise or parody it. A technology blogger who parodies a software company's marketing claims using their own imagery may be protected by this exception.
• Legal proceedings: reproduction for the purpose of judicial or quasi-judicial proceedings, including regulatory investigations.

Important limitations:

• The use must be genuinely for the stated purpose — a student who reproduces an entire textbook rather than purchasing it cannot claim fair use merely because the purpose is study
• Open-source licences are separate from fair use — always check the applicable licence before using open-source code; GPL, MIT, Apache, and other licences impose different conditions that fair use does not override