Protecting IP ownership and rights in Australia: 6 things employers need to know
Intellectual property rights protect a company’s ideas, distinguish its brand, and prevent any third parties from profiting off of unoriginal work.
If you’re hiring in Australia, you want to ensure you’re familiar with the country’s unique IP laws so that new inventions, designs, and trademarks are protected. Act slow, and you risk losing out on market share or, worse, finding yourself in legal disputes with competitors.
So, how can employers protect their IP? For the basics, read on. However, keep in mind that this guide is for informational purposes and isn't intended to provide legal advice.
1. NDAs are enforceable in Australia
In Australia, the courts have historically upheld non-disclosure agreements (NDAs) as enforceable, legally binding contracts so long as they’re reasonable and specific.
In recent years, NDAs have come under fire for allowing Australian companies to cover up workplace misconduct such as sexual harassment and discrimination. The Australian Attorney, General Mark Dreyfus, recently committed to strengthening laws against NDAs that shield companies from criminal workplace behaviour.
2. IP Australia handles rights and registrations for 4 different kinds of IP
IP Australia is an Australian government agency that administers the rights and legislation for the following:
Trademarks: Australian trademarks protect and distinguish a company’s brand. They are governed by common law and the Trade Marks Act 1995 (Cth).
You can search for already registered trademarks on the IP Australia website. If your idea isn’t taken, you can also apply for registration online provided you know the trademark’s ownership details, have a proof of concept of the trademark, and know which goods and services it applies to.
While unregistered trademarks can still be recognised as legitimate, they’re much harder to legally protect than those registered with IP Australia.
Patent protection: Patents can prevent third parties from profiting from an invention. They are governed by Australia’s Patents Act 1990 and give companies exclusive commercial rights to technology, devices, substances, and processes. Patent holders also have the right to take legal action against IP infringement.
Standard patents can last up to 20 years. You can get them by first filing a provisional patent application that signals your intent to get future IP protection before any competitors. Under the Patents Act, standard patents for inventions need to be novel, practical, and not previously used under the patentee’s authority.
Design rights: Australian companies can secure industrial design rights to protect the visual appearance of commercial products. You can file a design application with IP Australia. Registered designs give owners the exclusive rights to use the visual, but you have to separately certify the design to have the right to take legal action against others who use it.
According to the Designs Act 2003, the owner of a registered design owns a monopoly on it until the registration renewal comes up every five years.
3. Documented ideas are automatically protected under Australian copyright law
Australia provides copyright protection for creative properties including:
- Artistic works
- Sound recordings
- Computer programs
- Visual images
- Broadcasts
Copyright protection is automatic as soon as the creation is written on paper or electronically. Under the Copyright Act 1968, protection is free. While timeframes can vary depending on the type of copyright material, protections typically last:
- 70 years after the death of the author
- 70 years after sound recordings or films are first made public
- 50 years after a television or radio program is broadcast
4. Always clarify IP ownership and protections in your employee agreement
Employers should include a clause in every employee agreement outlining IP protections with new hires. According to IP Australia, this can include:
- Who owns the IP created by the employee
- Who has the right to use the IP for commercial purposes
- Conditions for a transfer or IP ownership
- Confidentiality agreements for trade secrets and other proprietary information
- Non-compete agreements
Under Australian laws, employers own the IP created by employees on the job, so long as it’s relevant to the underlying business. For any exception to this rule to be legally binding, it needs to be in the employee agreement.
5. Contractors own the copyright to their work unless you override this in a written agreement
IP protections are only enforceable if an employment relationship exists—so make sure you’re not misclassifying contractors. In Australia, independent contractors own the IP they’ve developed for a company unless their contract states otherwise.
Under Australian copyright law, contractors automatically own the copyright to their work, unless a client overrides this with a written contract. The contract must include:
- Background IP owned by each party before entering into the work arrangement
- Rules for IP generated during and within the work arrangement
- Rules for IP that may be generated after the work arrangement ends
Frequently asked questions about IP law in Australia
Who owns IP in Australia: employee or employer?
Employers own IP created by employees as part of their work. For instance, if an employee creates new software for a tech company on company time, the employer owns the underlying IP. Any exceptions to this must be written into the employee agreement.
What are some other types of IP Australian employers can protect?
Australian employers can also protect IP for:
- Domain names: Australian internet addresses are regulated by the .au Domain Administration (auDA). You can use the agency’s website to search available domain names and seek registration for a new web address.
- Circuit layouts: Australian employers can protect IP for circuits used in computer chips for electronic equipment such as watches, household appliances, and medical technology. If the layout plan is original and created in Australia, the inventor automatically secures the IP and has legal rights to it for 10 years after its creation. The Attorney General’s office manages circuit layout rights.
Does registering your business name give you exclusive rights to a trademark?
No. Australian business owners must register business names with the Australian Securities and Investments Commission (ASIC). But this process doesn’t also secure rights to a trademark. To get trademark protection, you need to register the business name with IP Australia.
The same goes for domain name registration. Other people can still use your business name, even if you registered it as a website. To gain further protection, you need to also register the name as a trademark.
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Rippling and its affiliates do not provide tax, accounting or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any related activities or transactions.
