8 Common Myths about Intellectual Property in Australia

Intellectual Property Australia Myths 1

When it comes to Intellectual Property in Australia, there are plenty of “Philadelphia lawyers” out there. You know the ones – the know-it-alls posting in your local women in business group, your friend’s new smart-ass boyfriend who pipes up at every dinner party, your dad. With so many different (and loud!) opinions, it’s easy to get confused and overwhelmed about what really is and, more importantly, isn’t legal.

Here are eight of the most common myths about Intellectual Property in Australia:

Myth Number 1: You need to register your copyright

This is a pretty common one. I think because we all watch far too much American television (you have to register copyright in the US).

In Australia, copyright protection is automatic as soon as certain requirements are met (original work, in material form, with a connection to Australia).

 

Myth Number 2: If you change someone else’s work by at least 25%, you’re not infringing their copyright

This one is particularly dangerous for those of you who are artistically minded.

The rule for copyright infringement is when someone copies a “substantial part” of a copyrighted work. So what’s a substantial part? Hard to say. I can tell you what’s NOT a substantial part: 25%. Or 10%. Or any % for that matter. What constitutes a substantial part of a work will vary from case to case.

Here’s the thing: it’s impossible to say with any measure of accuracy what is a substantial part of any work. That’s why lawsuits arguing the point go on for so long and are so damn risky.

The bottom line: if you’re thinking about “changing” someone’s work to try to make it your own, don’t. By all means, be inspired, but don’t copy. Anything. Ever.

 

Myth Number 3: If your work is being copied by someone in China, there’s nothing you can do about it legally

I see so much hate in Facebook groups for China-based businesses. You’d think that not only is there not IP protection there, but there are no morals either. Geez!

People seem to get this one halfway right: Australian copyright law doesn’t apply to China-based businesses.

But that’s not the end of it. Australia has signed up to plenty of international treaties, including some major IP protection ones. And guess what? So has China! So, what does that mean? Well, it means that China will offer Australians copyright protection in China.

So what’s the catch? Well, first of all, it’s not the same. So you’ve got to learn Chinese copyright law and figure out if you have copyright under that and if it’s being infringed under that. Second, you’ve got to do something with that. Feel like suing in China? Didn’t think so.

So, technically you probably have legal protection in China, but it might be practically impossible to do anything about that. Legally speaking anyway. There are plenty of practical steps you can take to protect your copyright before lawyering up.

 

Myth Number 4: You can protect your original idea by filing a trademark

If you’re an ideas man or woman like me, and you’re having great ideas (well, you think they’re great anyway) all the time, you’ll be sad to learn that this one is most definitely not true.

First of all, a trademark is just what it says it is: a mark of your trade. It’s a sign, symbol, word or something else that distinguishes your business from other businesses. You can’t trademark an idea.

The only thing that comes close is patent protection to protect innovative ideas, but the pre-requisites for that are pretty tight. First of all, it has to be secret. So you know that new app you came up with to revolutionise the toe-nail-cutting industry that you told your girlfriends about over drinks last weekend? Not gonna cut it. Sorry!

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Myth Number 5: Reposting images on Instagram and Pinterest is OK as long as you credit the owner

Ever wondered why you need to download a separate app to do a repost or a regramm on Insta? It’s annoying, right? Well, the reason is this: it’s illegal. Gah!

“But everyone does it, even celebrities!” I hear you say with indignation and a hint of fear. I know, I know. But just like your mum told you as a child, just because everyone else is jumping off a bridge doesn’t mean you should too.

If you want to “regram” something on Insta, contact the person and ask for their permission. But keep in mind that they might not even be the real copyright owner! Frustrating, right? Well, because this whole repost and credit myth has gained so much steam, it’s bordering on impossible to track down true copyright owners these days. That said, it’s not so hard for them to find you – so watch out!

 

Myth Number 6: Fair use in Australia is the same as in the US

“Who cares?” I hear you say.

I have one word for you: GIFs.

I’m sorry. But your beloved GIFs? The things that make long-ass workdays mildly bearable and avoid the need for actual words in conversations with your bestie? Don’t hate me: they’re out too.

First my Insta and now my GIFs?!

I know, it’s awful. American copyright law has a fair use exception that seems to let GIFs slide through. Sadly, in Australia, all we’ve got is a fair dealing exception and it’s WAY tighter. Basically, unless you’re a teacher or a newsreader, you’re screwed.

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Myth Number 7: You can use stock images for everything

I’m going to assume you know enough about copyright to know you can’t just flog images from Google image search, stuff your blog post with them and let it run wild out into the web.

So you’ve probably turned to stock photography. Good for you.

There are two kinds of stock photography: free and paid.

If you’re just starting out and have limited funds, you’re probably going for the former. Which is fine. But you’re probably more likely to run into this problem:

You can’t use stock photography for everything.

What?! I know. But have you ever heard the words “always read the fine print”? That’s what you need to do. Every. Single. Time.

Generally speaking, look for the words “Creative Commons” or “Free for commercial use, no attribution required” and you should be fine.

 

Myth Number 8: It’s too expensive to stop someone from copying your work, you just have to live with it

The internet is fantastic and amazing and how would we even use an oven without Google, right?? But when it comes to intellectual property, the internet is the actual worst.

Imagine putting all your hard work and creativity and awesome-ness into your work, just to have it ripped off. We all know someone who’s been a victim of IP theft (and if you haven’t, what rock have you been hiding under?)

Sadly, a lot of people think there’s nothing they can do about it. Especially small business owners and independent artists and designers. But that’s so wrong!

Yes, suing is someone is expensive. Like, really expensive. And so risky. And just generally un-fun. But who says you have to go all the way down that road? Ever heard the phrase “fake it til you make it”? Totally applies here. Bluff until you can bluff no more!

Having a lawyer send a scary letter threatening to throw the proverbial book at their copycat ass will be enough to scare most copycats off their little troll perch on the internet. Don’t even want to go that far? Try contacting them yourself! You’d be surprised how many IP complaints get dealt with this simply. And the best bit: there is absolutely no harm in trying.

 

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Courtney Bowie

Founder

Courtney is Her Lawyer’s founder and principal lawyer. Before starting the firm in 2017, she worked as both a lawyer and consultant in top-tier law firms. Courtney is passionate about gender equality, mental health and wellbeing, especially in the legal profession.

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