Intellectual Property Online

Copyright, Trademarks and Patents


  • A copyright is "The right to copy, specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectular works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work."
  • A trademark is "A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others. The main purpose of a trademark is to designate the source of goods or services. In effect, the trademark is the commercial substitute for one's signature. To receive federal protection, a trademark must be (1) distinctive rather than merely descriptive or generic; (2) affixed to a product that is actually sold in the marketplace; and (3) registered with the Patent and Trademark Office. In its broadest sense, the term trademark includes a servicemark. Unregistered trademarks are protected under common-law only, and distinguished with the mark 'TM.'"
  • A patent is "The right to exclude others from making, selling, offering for sale, or importing an invention for a specified period, granted by the federal government to the inventor if the device or process is novel, useful, and nonobvious."
  • Fair use is "A reasonable and limited use of a copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in a parody. • Fair use is a defense to an [copyright] infringement claim, depending on the following statutory factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the economic impact of the use.
  • Public domain is "The universe of inventions and creative works that are not protected by intellectual-property rights and are therefore available for anyone to use without charge. • When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and and can be appropriated by anyone without liability for infringement."

A Fair(y) Use Tale

difficulties with enforcing rights

Copyright enforcement

Traditional media formats (such as books) create their own enforcement environment. It can be time consuming and expensive to make copies and almost always involves a loss of quality. If the content is in digital form copying tends to be cheap, fast and maintains the same level of quality. The music industry has seen this first hand with the explosion of file sharing via peer-to-peer networks.

In the digital age territoriality is more difficult to enforce, as the Internet is not bound by the same geography as bookstores and movie theatres. However enforcement of copyright on the Internet is not impossible. If a user downloads material from a territory where they are not entitled to download the material, they are not immune from legal challenge, just because they were able to download it. Publishing companies now can and do serve subpoenas on Internet service provider (ISP) to obtain all relevant information of the offending user.

There are also implications for marketing and promotion of new book titles for example, which increasingly include online components, which audiences in different territories may have immediate access to, prior to the publication being available in that territory. So a book may be launched with an alternate reality game in the US before the book is realised in Australia, making it difficult to manage and measure promotion and release strategies.

Copyright infringement in new media

The most commonly used solution to problems enforcing copyright protection in the new media industry is Digital Rights Management (DRM). DRM is a series of rules and processes designed to limit access or usage of digital media or devices. It involves a range of techniques that use information about rights to manage and distribute copyright material and is based on the principle of controlling how content (including music, text, software and games) is shared, distributed, played, altered or copied.

The music, film and publishing industries have made many attempts to implement DRM and in some cases with limited success.

Creative Commons (CC) is a charitable institute that provides free tools that allow authors, scientists, artists and educators to easily mark their creative work with the freedoms they want it to carry. CC enables writers to place their copyright material in the public domain with certain restrictions, perhaps changing copyright terms from ‘all rights reserved’ to ‘some rights reserved’. An author can maintain ownership, but allow others to change, share, distribute, alter, add to or simply legally use. Increasingly CC is gaining traction as a way of recognising the rights of the creator while allowing varying levels of permissions to reuse and remix content.

resolving disputes

You can:

  • issue a letter of demand or warning from your attorney
  • propose negotiations to settle out of court (often referred to as Alternative Dispute Resolution)
  • request Customs to seize infringing imported goods or products for 10 days while you seek a court order
  • initiate court action

the role of law reform

The Australian Law Reform Commission released a discussion paper in June 2013 regarding the need for law reform in the area of intellectual property.

"The reforms proposed in this Discussion Paper include the introduction of a

broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime

becomes more flexible and adaptable. An alternative model, should fair use not be

enacted, suggests the addition of new fair dealing exceptions, recognising fairness

factors. Other reform proposals relate to the replacement of certain statutory licences with voluntary licensing more suited to the digital environment; the use of orphan

works; provisions relating to preservation of copyright material by cultural institutions; and contracting out of the operation of certain copyright exceptions. Two alternative proposals relating to the scheme for the retransmission of free-to-air broadcasts are set out for comment from stakeholders, in addition to other proposals relating to broadcasting. "

Discussion paper:

News article: