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Transcript of Intellectual Property
What is Intellectual Property?
Intellectual property (IP) is a legal concept which refers to creations of the mind for which exclusive rights are recognised. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs.
What are the types of Intellectual Property?
Patents: A patent grants an inventor exclusive rights to make, use, sell, and import an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process.
What is the Law?
In Australia, copyright law is set out in the Copyright Act 1968 (Cth). This is federal legislation, and applies throughout Australia. Although the Act dates from 1968, it sets out how copyright applies for material created both before
and after that date. It has been regularly amended since 1968, to bring it up to date with evolving technologies and concerns. In addition to dealing with copyright rights, the Act also deals with performersʼ rights and the “moral rights” of individual creators. In many cases, Australian courts have had to decide how the Copyright Act is to be interpreted and applied.
Apple Inc. v. Samsung Electronics Co., Ltd.
In early 2011, Apple began litigating against Samsung in patent infringement suits. By August 2011, Apple and Samsung were litigating 19 ongoing cases in nine countries; by October, the legal disputes expanded to ten countries; including Australia. By July 2012, the two companies were still embroiled in more than 50 lawsuits around the globe, with billions of dollars in damages claimed between them. While Apple won a ruling in its favor in the U.S., Samsung won rulings in South Korea, Japan, and the UK.
Copyright:A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.
Industrial Design Rights: An industrial design right protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value.
Trademarks:A trademark is a recognizable sign, design or expression which identifies products or services of a particular source from those of others.
Trade Secrets: A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. Trade secret law varies from country to country.
In Australian Courts
Also in early 2011, an Australian federal court granted Apple's request for an injunction against Samsung's Galaxy Tab 10.1. Samsung agreed to an expedited appeal of the Australian decision in the hope that if it won its appeal before Christmas, it might salvage holiday sales that it would otherwise lose. Ultimately, the injunction Apple sought to block the Tab 10.1 was denied by the High Court of Australia. In July 2012 an Australian judge started hearing the companies' evidence for a trial anticipated to take three months.
An Australian court slapped a temporary ban on the sale of Samsung Electronics' latest computer tablet in the Australian market on Thursday, handing rival Apple another legal victory in the two firms' global patent war.
The Federal Court's ban on sales of the Galaxy 10.1 tablet applies until it rules on the core patent issue in dispute, which could take months and force Samsung to miss the Christmas gift-giving season in Australia.
Samsung has said that the product's viability in the Australian market would be killed off if it missed Christmas.
The Australian ruling follows Apple's successfully legal move to block Samsung from selling its tablets in Germany and some smartphone models in the Netherlands.
Intellectual Property Application in Australia
Applications for patents and trade marks in Australia dipped during the global financial crisis (GFC). From 2011 to 2012, we have seen growth in patent and trade mark filings from Australian applicants as well as applicants from the United States of America (US) and Asia, but a decline from most major filing countries in Europe. The majority of patent, design and plant breeder’s rights are filed by non-residents, and the majority of trade marks are filed by Australian residents.
- In 2012, IP Australia received 6,449 design applications: 3,793 from non-residents and 2,656 from Australian residents.
-In 2012, there were 41,106 (66%) applications from Australian residents
and 21,527 (34%) applications from non-residents.
- In 2012, IP Australia received 26,358 standard patent applications. Of these, 90% were from non-residents and the remaining 10% were from
IP and Innovation in Australia
Australia’s IP system ranks third globally in the latest Global IP Index which is based on effectiveness and administrative performance.
Notably, every part of Australia’s IP system considered by the Global IP Index is ranked in the top ten.
On a national level, Australia is nearing completion of one of the most
comprehensive periods of IP reform. It encompasses legislation, practice, service delivery and stakeholder engagement.
According to data from the Australian Bureau of Statistics, innovative
firms are using IP rights more. While secrecy is still the most common
approach to protecting IP, the data shows that:
• large and medium size innovative firms increased their use of trade
marks and copyright between 2008-09 and 2010-11; and
• innovative firms increased their use of patents and design rights in
IP and Innovation Globally
On a global scale, royalty and licensing transactions for patents have grown rapidly in volume and as a share of world GDP. While growth in global patent transactions has outpaced world GDP, this is not mirrored in Australia’s economic figures:
• For the past decade, IP transactions in Australia have remained steady, with IP receipts at roughly 0.25% to 0.5% of the current
• IP payments have been 1.0% to 1.5% of the current account, which means Australia pays out more than it earns.
Major Australian Reform
Australia’s Intellectual Property Laws Amendment (Raising the Bar) Act 2012 came into full effect on 15 April 2013, with changes to patents, trade marks, copyright, designs and plant breeder’s rights will:
- Raised the standard required for an invention to be granted a patent.
- Higher standards aligning with major trading partners such the US, Europe and China.
- Australian researchers will be able to experiment with ways to improve existing inventions without
infringing existing patents.
- Set shorter time frames to resolve disputes.
- Increased penalties for counterfeiting and introduced
- Stronger powers for customs to seize counterfeit imports.
-The maximum penalty for trade mark infringement increased from two to five years
imprisonment, with courts able to award exemplary damages against
- Also for the first time in Australia, trade mark and design matters can be taken to the Federal Magistrates’ Court, a less expensive option than previously when these matters had to go to the Federal Court.
Consequently, IP rights holders have more options to protect their rights
Costs for Intellectual Property
An Australian patent holder can exclude anyone else from using the patented technology in Australia. This exclusion can apply to manufacturing, as well as selling that technology and any commercial activity around the technology.
Patent application cost: $370
Total cost including attorney fees: $8,000+
Duration: 20 years
Renewal: every year
A registered design that has been certified after examination allows the holder to exclude others from using the design in any commercial
way within Australia. Examples of registered designs include the look, shape and feel of a mobile phone, the design of a unique windsurfer or innovative fishing gear.
Application cost: $350
Optional examination cost: $420
Duration: 10 years
Renewal: once, after 5 years
A trade mark allows the holder to exclude others from using the registered
mark in the same class, which is why there is only one triangular shaped
chocolate bar. Different firms can have the same trade mark in different
classes, such as the ‘Lotus’ trade mark name which is used by software,
automobile and door companies in Australia.
Application cost: $120 per class
Registration fee: $300 per class
Renewal: every 10 years
Why do we need IP?
Essentially, intellectual property rights come down to respect. Respect for designers and artists is sometimes lacking in our society. There’s a pervasive feeling in some circles that design is easy, and that anyone can do it. As creative professionals, we know that’s not true.
- Authors of IP should be paid for their work
- IP supports investment and innovation in R&D departments
- An industry with no IP would lose productivity
Is it worth having?
Accessible, sufficient and adequately funded arrangements for the protection of rights are crucial in any worthwhile intellectual property system. There is no point in establishing a detailed and comprehensive system for protecting intellectual property rights and disseminating information concerning them, if it is not possible for the right-owners to enforce their rights effectively in a world where expanding technologies have facilitated infringement of protected rights to a hitherto unprecedented extent. They must be able to take action against infringes in order to prevent further infringement and recover the losses incurred from any actual infringement. They must also be able to call on the state authorities to deal with counterfeits. All intellectual property systems need to be underpinned by a strong judicial system for dealing with both civil and criminal offenses, staffed by an adequate number of judges with suitable background and experience. Intellectual property disputes are in the main matters to be decided under civil law and the judicial system should make every effort to deal with them not only fairly but also expeditiously. Without a proper system for both enforcing rights and also enabling the grant of rights to others to be resisted, an intellectual property system will have no value.
First Known Copyright Law
Statue of Anne:
The Statute of Anne (c.19), an act of the Parliament of Great Britain, was the first statute to provide for copyright regulated by the government and courts, rather than by private parties. Prior to the statute's enactment in 1710, copying restrictions were authorized by the Licensing Act of 1662.
No pleasant wishes in copyright battle over 'Happy Birthday to You' song
Makers of a documentary about the song Happy Birthday to You are suing a major recording company over copyright to the jingle, called the most famous song in the English language.
They are also seeking damages and restitution of more than $5 million in licensing fees collected by Warner/Chappell Music Inc from thousands of people and groups who've paid it licensing fees. Good Morning To You Productions Corp, which is working on a film tentatively titled Happy Birthday, argues in a lawsuit filed in New York Thursday that the song should be "dedicated to public use and in the public domain".
"More than 120 years after the melody to which the simple lyrics of Happy Birthday to You is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy Birthday to You," the lawsuit states.
The film company filed the lawsuit after having to pay Warner/Chappell a $1500 licensing fee and sign an agreement to use the song in a scene - or face a $150,000 penalty.The suit asks the court to count thousands of people and groups who've paid Warner/Chappell Music licensing fees as part of a class action and to make the song free to use.Warner/Chappell, based in Los Angeles, claims exclusive copyright to Happy Birthday to You, which Guinness World Records has called the most famous song in the English language.The company, whose artists include Aretha Franklin, Barry Gibb, Rob Zombie, Madonna and Michael Jackson, didn't immediately respond to a request for comment Thursday.
Good Morning To You Productions argues that evidence dating to 1893 helps show the song's copyright expired around 1921. It says four previous copyrights to the melody of the similar-sounding song Good Morning to All, filed in 1893, 1896, 1899 and 1907, have expired or been forfeited.
The suit says that Warner/Chappell claims the exclusive copyright to the song based on piano arrangements published in 1935 but that the copyright applies only to the piano arraignment and not to the melody or lyrics.