Understanding How Copyright Protection Automatically Applies

Angus

• 16 November 2021
• 23 November 2021
• 6 min read

Copyright law can be confusing. Ensuring you obtain and retain the right to use your artistic creations is essential for running a business. However, often you can confuse the automatic copyright protection you receive for artistic works with other rights you obtain through filing a trade mark application. Understanding the differences between trade mark protection and copyright protection is critical to ensuring you are in the best position to protect your intellectual property (IP). This article explores these differences and how copyright protection may automatically apply to you. 

Trade Mark Protection

Trade marks are brand assets that you can register with IP Australia and include elements like:

• names; 
• logos;
• colours; 
• sounds; 
• images; or 
• shapes. 

As part of your business, you might use these to distinguish your services or products from competitors in the marketplace. A registered trade mark not only gives you exclusive rights to its use but provides you with options if you find a competitor is using your trade mark without your permission. However, to consolidate these rights, you must first apply to register your trade marks amongst other IP your business owns. 

Importantly, trade marks have a requirement to be distinctive, or unique. Consequently, IP Australia may refuse your application if what you are trying to register is too generic or similar to an existing trade mark in the same or similar industry.

Additionally, a registered trade mark provides 10 years of protection, allowing you the right to use, sell and license the mark to your liking. 

Copyright Protection

On the other hand, copyright in Australia is an automatic right given to original works, including:

• textual items, like books or articles;
• artistic creations;
• audio recordings;
• films; and 
• computer programs. 

Australian copyright law aims to protect the result of original ideas, not just an idea itself. Therefore, protection only applies when you bring your ideas to fruition as a tangible item or electronic program. Likewise, copyright owners then gain the exclusive rights to publish, reproduce, alter, and distribute their work to the public eye. 

Copyright vs Trade Mark

There are three key distinctions between a trade mark and copyright. The first is that copyright protection is automatically generated on works, while trade mark protection more often requires registration with IP Australia. 

Secondly, copyright protects literary and artistic creations in material form. So, for example, copyright laws will protect your book about intergalactic space travel, not the idea of space travel itself. On the other hand, trade marks cover brand elements, such as names, logos, shapes, sounds, or smells. 

Thirdly, copyright protection lasts throughout the life of its creator plus 70 years after their passing. This is not the same for trade marks with a 10-year expiration date (which you can extend with renewal).

It is important to keep these differences in mind when deciding how to best protect your IP. For example, while copyright will automatically apply to any artistic works you produce, you may need to take additional protections, like registering a trade mark for the title of your artistic work. 

Registered Business Name vs Registered Trade Mark

Whilst running a business, an initial step you may take is registering your company or business name. Importantly, this does not provide you with exclusive rights to that name, as it is neither a trade mark nor copyright. While registering your business name is a necessary step before trading under that title, a name registration will not stop another person who owns a trade mark to that name from using it in relation to their goods and services. 

This can get tricky, though it is best to think of a business, company, or domain name registration as entirely separate from trade marks or copyright. 

Keep in mind that this does not mean trade mark registration is necessary to own a copyright for a chosen name. Instead, registering your business name under a trade mark serves to provide an additional layer of IP protection. It will protect you from losing exclusive rights to another company that uses the same name or a similar one. Therefore, although common law trade marks are typically indicators of ownership, they do not prove as exclusive as marks that have been registered and approved by IP Australia.

Pursuing Protection Without Proof of Works

Ambitious business owners often attempt to register a trade mark or obtain copyright without any online presence, original works, or general proof of ownership. The danger is that if a third party uses a trade mark similar to yours and you wish to challenge it, it can be difficult for you to demonstrate exclusive rights to your trade mark. Likewise, you are in a better position if you can show an ongoing use of your trade mark such as evidence of your live business website. 

Ultimately, it is more beneficial to register a business name and devise a unique logo after launching a website to reflect its existence, for example. This is because evidence such as a website can make it more likely that IP Australia will approve your trade mark application, giving you the authority to protect your chosen name and logo against infringement. 

Key Takeaways

Before mistakenly believing that copyright protection automatically applies to your IP, it is critical to know the differences between trade mark and copyright protection. Likewise, remember that copyright protects literary works and art pieces, while trade marks protect names, logos, shapes, sounds, and smells. For questions about how copyright protection automatically applies or when it is best to apply for a trade mark, contact our experienced trade mark lawyers on 1300 657 423 or complete the form on this page.

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