Three (3) non-registrable IP rights (in Australia) that impact on software development include:
- Trade secrets; and
- Confidential information.
Copyright is a suite of rights, referred to in the Copyright Act 1968 (Cth)
, which is intended to protect the expression of an idea such as literary works, films, music, pieces of arts and computer software. Where copyright subsists it prevents other parties from reproducing that work. Copyright automatically protects the results of the owner's skill and effort in producing and recording the work in a material form.
Copyright provides the owner with certain rights including the right to publish, present or performs the works, adapt them or grant a right to use them to some other person. The classes of copyright which usually apply to IT projects include:
Section 10 of the Copyright Act 1968 (Cth)
provides that the term â€˜literary work' includes tables, compilations, figures and symbols expressed in words, as well as computer programs whether or not they are compiled. Literary works can be as little as paragraphs of text written for a website to entire books.
Because there are usually many individuals involved in innovation projects it's usual to have to â€˜trace the chain of custody' (as we refer to it) to establish that the respective IP right vests where they should. One of the most overlooked aspects in this regard is failure to recognise the contractors that are engaged to produce artistic works and computer code own the IP unless it is expressly assigned in writing.
In simple terms, a trade secret is any secret commercial information that provides one business with an advantage over another. For example, trade secrets have been used by Coca-Cola for decades to ensure that its formula remains secret.
Despite the lack of a settled, legal definition of a "trade secret", their value is recognised both at law, and in equity. At law, restraints of trade can be legitimately used in order to prevent the disclosure of trade secrets, or to prevent the use of trade secrets by employees in any subsequent business or employment. Trade secrets are protected in equity by way of an action for breach of confidence even in the absence of contractual agreements restraining their use. Whilst its unusual, trade secrets can arise in software development projects.
When a party usually referred to as the (Discloser) communicates the information to another generally referred to as the (Recipient) it is considered confidential if that information:
For information to be confidential, it must not be public property, in the public domain, or common knowledge. Ultimately, there are no formal standards in which information must adhere to in order to be confidential. Different types of information may be subject to different requirements. In regard to information disclosed in person, whether a court will protect personal confidences depends on:
Perhaps the biggest myth that needs to be debunked in this area is that "Confidentiality agreements aren't worth the paper they are written on". This is just not true, provided of course that their terms are carefully and professionally drafted.
Identifying, registering, monitoring and enforcing your organisation's intellectual property rights is an essential part of any business strategy. Intellectual property rights should not be ignored. Whether it is a result of research and development, your marketing efforts or the fruits of your intellectual endeavours, executives and entrepreneurs must turn their mind to ensuring the appropriate protections are in place and act swiftly when infringements are discovered.
If you need assistance identifying, managing or protecting your intellectual property rights please telephone me for an obligation free and confidential discussion.
This article is not legal advice. It is general comment only. You are instructed not to rely on the commentary unless you have consulted one of our Lawyers to ascertain how the law applies to your particular circumstances.