KEY IP RIGHTS RELEVANT TO CONSTRUCTION
Federal legislation in Australia assists in the protection and preservation of registered and unregistered IP rights, such as:
Patents – Registered Right
A patent is used as a form of protection for a device, substance, method, or process that is novel, useful, inventive and must be a ‘manner of manufacture’. Owners of a patentable invention, such as a new form of building material or construction method, are granted exclusive rights for a period of up to 20 years.
Trade Marks – Registered Right
The branding of products and services provided by construction entities is crucial in developing and establishing an identity and reputation in the market. A registered trade mark under the Trade Marks Act, being a distinctive sign, logo or brand name, provides an exclusive monopoly right in the use of the mark for the goods and services offered under the registration.
Designs – Registered Right
Protection under the Designs Act grants all designers exclusive rights in the visual elements of pattern, shape, and configuration, preventing unlawful replication or imitation by third parties. It is important to note that design registration merely protects the visual appearance of a product, while the function is typically protected by means of patent registration.
Copyright – Unregistered Right
Original work created by architects, designers, property developers and other professionals, is protected under the unregistered IP right of copyright. Under the Copyright Act, originality of work is determined by the level of exerted ‘independent intellectual effort’ by the creator or inventor. In respect of construction and property, copyright exists in various forms of ‘artistic work’, including drawings, buildings, and even models of buildings. Importantly, the legislative framework provides creators in the construction industry with the exclusive right to use, publish, replicate, communicate and assign original works while ensuring such works are not unlawfully exploited or imitated without permission or license.
Moral Rights – Unregistered Right
A moral right protects the creator’s non-economic interest in their original work and consequently cannot be assigned or licensed to another person or entity. The relationship between an original work and its author, for example a building designer or architect, is granted protection for their life plus 70 years. This includes the following rights:
- Right of attribution;
- Right against false attribution; and
- Right of integrity.
The relationship between moral rights and property related matters is discussed further in an article written by HWLE Partner Luke Dale and Solicitor Annabel Bramley here.
Misleading and Deceptive Conduct – Unregistered Right
Sections 18 and 29 of the Australian Consumer Law (ACL) establish the general rules in respect of misleading and deceptive conduct, in addition to prohibiting false and misleading representations made in relation to the ‘standard, quality, value, grade, composition, style or model’ of goods and services. Misleading and deceptive conduct in relation to construction and property is discussed further in an article written by HWLE Partner Luke Dale and Solicitor Annabel Bramley here.
WHY IS IP PROTECTION IMPORTANT?
Much like many other sectors in the Australian economy, the protection of IP is essential in the construction industry.
Preservation of Innovation
The most fundamental advancements in architecture and construction relate back to innovations in methodologies and technology. As an industry that flourishes off innovative creations, it is crucial that industry professionals safeguard and preserve unique ideas, designs, and inventions through IP regimes.
By securing patents, copyright, design registrations and trade marks, construction professionals are granted exclusive rights over original works and inventions required to preserve construction methods and building techniques, potentially including revolutionary equipment and materials used in the industry. By doing so, the risks of commercial exploitation or replication by third parties are reduced enabling construction businesses to maintain a market advantage and develop a reputable identity.
The ACL offers construction entities and consumers protection against misleading and deceptive conduct.
Enhancing Building Safety and Quality
Structural integrity and safety standards are critical components of the construction industry. Innovation in construction is associated with the aim of developing safety enhancements and improving sustainable practices. IP rights help protect the quality and safety of methods, equipment, and buildings through several mechanisms.
Importantly, the integrity of architectural designs and building materials are preserved through regimes such as the ACL and the Copyright Act, to ensure building standards, the quality of materials and equipment and ownership of certain IP assets are not misrepresented or compromised. The security of IP rights assists in protecting against counterfeit and poor-quality products and materials, which ultimately preserves construction safety standards.
Investment and Business Opportunities
A robust IP portfolio acts as a tangible display of commitment to innovation and presents opportunities for collaboration and investment in the construction industry. The value of IP assets held by a company or individual is a determinative factor in any decision to invest in research and development. The showcasing of IP assets therefore plays a pivotal part in acquiring investments and attracting partnerships to promote company growth and facilitate the access and exchange of resources and expertise.
Developing Efficient Commercialisation Strategies
It is important to consider whether it is necessary to leverage the commercial value of any IP assets.
Commercialisation of IP most commonly occurs as a transfer of property to another entity or when an entity grants another entity the right to use such IP asset through a licensing agreement. By licensing and selling IP rights, construction companies have opportunities to generate alternate revenue streams and establish new partnerships with other industry entities, increasing innovation and profitability. The pressure and opportunities to commercialise IP have evidently increased, and it is important to consider whether strategies to do so are relevant or appropriate under your specific circumstances.
Mitigation of Legal Risks and Disputes
Understanding the role of IP protection evidently mitigates the risk of legal disputes arising for construction entities. Acquiring a robust IP portfolio allows companies and individuals to enforce their IP rights against any infringing parties, and to seek remedies where appropriate. However, understanding the complex regimes that establish IP protection is a vital tool that should be implemented as common practice. Being aware of the obligations imposed on industry professionals collectively will ultimately reduce the risk of exploitation or misleading/deceptive conduct occurring. Such regimes, particularly the ACL, impose serious penalties and can result in significant financial and reputational consequences.
IP plays a large role in preserving innovation, incentivising investment and research, and ensuring compliance with Australian law. The security of IP rights enables construction businesses to defend and advance a competitive advantage while prompting commercial opportunities. To ensure construction businesses and other related industry professionals are proactively enforcing their IP rights, it is necessary to:
- Undertake comprehensive IP due diligence when required;
- Ensure IP protection is secured;
- Monitor and enforce acquired IP rights; and
- Comply with various Australian legislative frameworks to mitigate the risks associated with unlawful use or reproduction of IP assets.
If you require any further information or assistance in respect of your technology and property projects, please feel free to contact a member of our Intellectual Property & Technology, or Real Estate & Project teams to discuss possible solutions and next steps.
This article was written by Luke Dale, Partner and Alexia Daminato, Law Graduate.