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  • Intellectual property framework

    Overview

    Intellectual property rights (other than trade secrets and common law trademark rights) are governed by the laws of the Commonwealth (ie, at a federal level) and interpreted by court judgments (ie, common law). There are no state or territory-based intellectual property laws.

    Last modified 6 Apr 2018

  • Commercial contract framework

    Overview

    Australia's commercial contract framework is governed by the common law, supplemented by equitable doctrines, statutes (Commonwealth, state and territory) and international law instruments. There is no codification of the law governing contracts.

    For consumer goods and services contracts (a consumer may include a business in certain circumstances), the Australian Consumer Law (ACL) (which is a schedule of the Competition and Consumer Act 2010 (CCA)) applies. This legislation covers purchases of goods or services worth less than $40,000.00, or when the goods or services are of a kind that a person would usually buy for their personal, domestic or household use or consumption. There are also state and territory consumer laws.

    The ACL also includes an unfair contract terms regime that applies to:

    • Standard form contracts for a supply of goods or services or a sale or grant of an interest in land to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption
    • Standard form contracts where at least one of the parties is a small business (a business which employs less than 20 people) and the price payable upfront is AU$300,000 or less or AU$1 million or less for contracts with a term longer than 12 months

    Commercial contracts with Commonwealth and state government agencies may be subject to additional regulations.

    Last modified 6 Apr 2018

  • Copyrights

    Nature of right

    Copyright can subsist in both works, which include original literary, dramatic, musical and artistic works, and subject-matter other than works, which include sound recordings, cinematograph films, television and sound broadcasts and published editions of works.

    There is no registration requirement or publication requirement for a valid copyright (with the exception of television and sound broadcasts and published editions of works, which must be published).

    The exclusive rights for original works are to reproduce, publish, perform, communicate to the public and make an adaptation of the work, and to enter into commercial rental arrangements for a work reproduced in a program or sound recording.

    The exclusive rights for subject matter other than works are to make a copy of the work, communicate it to the public and to enter into a commercial agreement in respect of the work.

    Last modified 6 Apr 2018

    Legal framework

    Copyrights are governed by the Copyright Act 1968 (Copyright Act). There is no state-based copyright law and there is no common law of copyright, but there are court judgments that impact the interpretation of the Copyright Act. The Copyright Act provides for moral rights for original works and subject matter other than works except for sound recordings, sound and television broadcasts and published editions. It also provides performers' rights for performances.

    Australia is a party to the Berne Convention, the TRIPS Agreement, WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty and the Trans-Pacific Partnership Agreement.

    Last modified 6 Apr 2018

    Duration of right

    For original works that are published during the author's lifetime, copyright protection lasts for 70 years after the death of the author. For original works that are not published during the lifetime of the author, the copyright protection lasts for 70 years from the date of first publication.

    For subject matter other than works, the duration of the protection depends on the type of work.

    For television and sound broadcasts, copyright lasts for 50 years after the expiration of the calendar year in which the broadcast was made and for printed editions, 25 years after the expiration of the calendar year in which the edition was first published. For sound recordings and cinematograph film, copyright lasts 70 years after the end of the calendar year in which the recording or film is first published. 

    Last modified 6 Apr 2018

    Ownership / licenses

    Co-ownership of an original work is recognized where the work has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author(s). Subject to a written agreement to the contrary, all co-owners of copyright must consent to the licensing of the copyright by any other joint owner.

    An owner of a copyright may grant a license over some or all of the owner's rights. Statutory licensing schemes operate to allow certain copyrights to be used without the permission of the copyright owner, but this is conditional on the payment of equitable remuneration for that use. An owner can also assign their copyright or future copyright to another person.

    Last modified 6 Apr 2018

    Remedies for infringement

    The court may grant relief for an infringement of copyright by way of injunction, damages or (alternatively to damages) an account of profits. Criminal penalties are also available.

    In cases of innocent infringement, where the defendant was unaware or had no grounds for suspecting that their act constituted infringement, damages are unavailable.

    The court has discretion to award additional damages. In doing so, the court must consider, among other factors, the flagrancy of the infringement, the need to deter similar infringements, the conduct of the defendant, whether the infringement involved conversion of a work and the benefits that accrued to the defendant by virtue of the defendant's infringement.

    Last modified 6 Apr 2018

  • Mask works / topographies

    Nature of right

    Protection is given to the layout of integrated circuits (or semiconductor chips, commonly known as computer chips) under the Circuit Layouts Act 1989 (CLA), if the following requirements are met:

    • The circuit layout is a representation fixed in any material form of the three-dimensional location of the active and passive elements and interconnections making up an integrated circuit
    • The circuit layout is original
    • The circuit layout is either made by an eligible person or first commercially exploited in Australia or another eligible country

    The owner of an original circuit layout has exclusive Eligible Layout Rights (EL Rights), which include the exclusive rights to:

    • Copy the layout, directly or indirectly, in a material form
    • Make integrated circuits from the layout
    • Exploit it commercially in Australia
    • Authorize another person to do any of the above acts. Authorization is usually given in the form of a license. Registration is not required for layout rights and protection is automatic

    Last modified 6 Apr 2018

    Legal framework

    Circuit layouts are governed by the Circuit Layouts Act 1989.

    Last modified 6 Apr 2018

    Duration of right

    The duration of protection is ten calendar years after the calendar year in which the circuit layout was made. If the circuit layout is first commercially exploited within that period, the term is ten calendar years after the year in which commercial exploitation first took place.

    Last modified 6 Apr 2018

    Ownership / licenses

    The maker of an eligible circuit layout is generally the first owner of its EL Rights (please refer to exceptions enumerated in the "Intellectual Property in Employment Context" section). EL Rights are personal property rights that can be assigned, licensed and devolved in a will.

    Last modified 6 Apr 2018

    Remedies for infringement

    The available remedies for infringement are an injunction to stop the infringing activities and either damages or an account of profits.

    If the defendant's act was an innocent infringement (that is, they were not aware, and had no reasonable grounds for suspecting, that their act constituted an infringement), the plaintiff is not entitled to any damages against the defendant. In such circumstances the plaintiff is, however, entitled to an account of profits.

    Additional damages may also be awarded on the same basis as additional damages for infringement of copyright under the Copyright Act 1968.

    Last modified 6 Apr 2018

  • Patents

    Nature of right

    A patent is a statutory right that must be applied for, and may be granted following examination. An owner of a granted patent for a product has exclusive rights to:

    • Make, hire, sell or otherwise dispose of the product
    • Offer to make, sell, hire or otherwise dispose of the product
    • Use or import the product
    • Keep the product for the purpose of doing any of the above

    An owner of a granted patent that is a method or process has exclusive rights to use the method or process, or exercise any of the above exclusive rights in respect of a product resulting from such use.

    The owner also has an exclusive right to authorize another person to exercise the above rights.

    There are two types of patents: standard patents and innovation patents.

    To be patentable, an invention must be a manner of manufacture, novel, involve an inventive step (or innovative step for innovation patents), useful and not have been secretly used.

    Last modified 6 Apr 2018

    Legal framework

    Patents are governed by the Patents Act 1990 (Cth).

    Australia is a party to the Paris Convention, the Patent Cooperation Treaty, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977, the TRIPS Agreement and the Trans-Pacific Partnership Agreement.

    Last modified 6 Apr 2018

    Duration of right

    The duration of patent protection is 20 years from the effective date of filing for a standard patent, except for pharmaceutical standard patents which may have a maximum of up to 25 years to allow for the regulatory approvals processes. The duration of protection for an innovation patent is eight years from the effective date of filing. Patent rights are based on a "first to file" system.

    Last modified 6 Apr 2018

    Ownership / licenses

    A patent owner can grant a license to another party. The patent owner should register the license for it to be defensible against third parties. However, failure to register the license does not affect the validity of the license. Compulsory licenses may be granted in limited circumstances, including if the owner fails to exploit their patent.

    A patent owner can assign their patent interest (or part of the interest) to another person. They must register the assignment for it to be defensible against third parties. However, failure to register does not affect the validity of the assignment.

    Patents can be co-owned. Co-owners can exercise their exclusive rights without accounting to the other. Co-owners cannot grant a license or assign their interest without consent of the other co-owners.

    Last modified 6 Apr 2018

    Remedies for infringement

    The available remedies for infringement include injunction and damages or an account of profits. The damages may be calculated with reference to the value of the diverted sales or the going royalty rate that the infringer would have had to pay had a license been granted.

    A court can refuse to award damages or make an order for an account of profits if it determines that the infringement was innocent. An innocent infringement occurs when the defendant was not aware, and had no reasonable grounds for suspecting, that their act constituted an infringement.

    Last modified 6 Apr 2018

  • Trademarks

    Nature of right

    Trademarks in Australia are protectable on a first to use or register-based system. Both registered and unregistered marks can be protected. A registered trademark is a sign used to distinguish the goods and services of one trader from those of another.

    A sign can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these.

    Last modified 6 Apr 2018

    Legal framework

    Australian trademark law is based on the Trade Marks Act 1995 (TMA) as well as common law use-based rights which provide protection for unregistered rights under the common law tort of passing off.

    Trade practices legislation, principally the Competition and Consumer Act 2010 (CCA), provides additional remedies to trademark owners of registered and unregistered trademarks.

    Registered trademarks can be signified through use of the ® symbol.

    Unregistered trademarks can be signified through use of the ™ symbol.

    Australia became a party to the Trademark Law Treaty in 1998.

    Australia became a party to the Madrid Protocol in 2001.

    Last modified 6 Apr 2018

    Duration of right

    Subject to fulfilling the necessary requirements, a trademark registration provides a valuable statutory monopoly for an indefinite period of time. There is an initial ten year registration period and the registration can be renewed indefinitely every ten years without the need to provide evidence of use. However, a trademark registration that is more than five years old can be removed from the register if it has not been used for a period of three years or more.

    Last modified 6 Apr 2018

    Ownership / licenses

    A trademark registration grants exclusive rights in the trademark to use, license or sell the trademark within Australia for the goods and services for which it is registered. This means the owner of a registered trademark can prevent others from using the mark or a deceptively similar mark in relation to the same or similar goods or services.

    Licenses need not be recorded to be effective, and there is no specific provision allowing recordal on the Trade Marks Office Register.

    Last modified 6 Apr 2018

    Remedies for infringement

    Where infringement of a registered right is established, the relief that a court may grant includes an injunction to prevent further infringement and either damages or an account of profits at the plaintiffs option, and legal costs. Registered trademark owners may also give Australian Customs Service a notice objecting to the importation of goods that infringe their registered trademarks.

    If a trademark is not registered and another person uses it, a passing off action under common law or a claim for a breach of the prohibition against misleading or deceptive conduct (under the CCA) may be pursued. Successfully pursuing an action for passing off can be considerably more difficult than taking action under the TMA because an action for passing off requires proving goodwill or reputation in the trademark and proving that use of the trademark has misled or deceived consumers as to the origin of goods and services sold under the mark.

    Last modified 6 Apr 2018

  • Trade secrets

    Nature of right

    Trade secrets are treated as "confidential information" and can be protected through a breach of confidence claim.

    Such a claim can be brought if:

    • The information can be identified with specificity
    • The information was confidential
    • There was an obligation of confidence on the defendant
    • The defendant used the information without the plaintiff’s consent and to their detriment

    Last modified 6 Apr 2018

    Legal framework

    Confidentiality of trade secrets is usually stipulated in the contracts between parties and is therefore enforceable under such contract. However, in instances where there is no contract, a plaintiff may be able to rely upon the common law doctrine of breach of confidence.

    Last modified 6 Apr 2018

    Duration of right

    There are no specific statutory limits applicable to trade secret rights. For breach of a confidentiality agreement (or provisions), a six-year limitation period will apply.

    Last modified 6 Apr 2018

    Ownership / licenses

    Trade secrets cannot be assigned as they are not property. However, contractual rights to trade secrets can be assigned and licensed. An assignee or licensee can sue others for a breach of confidence.

    Last modified 6 Apr 2018

    Remedies for infringement

    Remedies for a breach of confidentiality in trade secrets include the equitable remedies of injunctions, imposition of a constructive trust, delivery-up, equitable compensation and an account of profits, in addition to usual remedies for breach of contract where relevant.

    In determining the severity of the remedy, the court may take into account the advantage given to the defendant when they acquired and exploited the plaintiff's trade secrets.

    Last modified 6 Apr 2018

  • Other key IP rights

    Nature of right

    Not applicable.

    Last modified 6 Apr 2018

    Legal framework

    Not applicable.

    Last modified 6 Apr 2018

    Duration of right

    Not applicable.

    Last modified 6 Apr 2018

    Ownership / licenses

    Not applicable.

    Last modified 6 Apr 2018

    Remedies for infringement

    Not applicable.

    Last modified 6 Apr 2018

  • Intellectual property in employment context

    Employees

    Copyright

    The Copyright Act provides that the employer will own the copyright if an employee made the work "in pursuance of the terms of his employment by another person under a contract of service or apprenticeship." Recent case law has clarified that it will not be sufficient that an employment relationship exists and instead the employee must have made the work within the scope of their duties or because the contract of employment expressly or impliedly required (or at least authorized) the work to be made.

    Patent

    Patent legislation does not provide for the ownership of an invention in an employment context. Under the common law, the issue is whether the invention was made in the course of the employee's employment and whether it was the employee's role to invent, ie, whether they had a "duty to invent." This frequently is (and should be) dealt with in the terms of the contract of employment although the contract may not always be determinative in deciding whether the employee owns the patent.

    Confidential information

    Employment contracts frequently include a confidentiality provision or there is a standalone confidentiality agreement. Even where there is no express agreement, a court will usually imply an obligation of confidence in an employment relationship and will consider factors such as the nature of the relationship and the nature of the information.

    Mask works / circuit layouts

    Under the CLA, if a circuit layout was made by a person in the course of his employment under a contract of service or apprenticeship, the employer is the owner unless there is an agreement in writing to the contrary.

    Last modified 6 Apr 2018

    Consultants / contractors

    An independent contractor (including a consultant) owns the copyright in any work, unless there is an agreement in writing executed by the parties to the contrary.

    Equally, an independent contractor has the right to patent an invention that he invented unless the contract between the contractor and the principal states otherwise.

    It is often presumed that an independent contractor and a principal have a confidential relationship and thus the independent contractor has an obligation of confidentiality. However, specific confidentiality obligations are usually (and should be) included in the agreement between the parties.

    Last modified 6 Apr 2018

  • Key commercial contract considerations

    Registration of commercial agreements

    There is no requirement to register commercial agreements. However, if security interests over personal property are created pursuant to an agreement they should be registered under the Personal Properties Securities Act 2009 (Cth). Registration is generally required to perfect the security interest and make it enforceable against third parties. Failure to register will not void the security but may result in the unregistered security interest being defeated by a later registered security interest or bona fide purchaser without notice.

    Last modified 6 Apr 2018

    Recognized language of commercial agreements

    It is preferable to use consumer friendly English.

    Last modified 6 Apr 2018

    Country-specific issues for online content

    The Copyright Act provides a 'safe harbor’ regime for service providers ("carriage service providers" as defined in the Telecommunications Act 1997), which limits their liability for copyright infringement by their customers (ie, liability by authorizing the infringing acts of their customers). Service providers must satisfy certain criteria in order to be protected by this scheme. Recent case law has left open the possibility of service providers being found to have authorized copyright breaches through a failure to act against infringing customers.

    Last modified 6 Apr 2018

    Enforceability of online/clickwrap/shrinkwrap terms

    These types of terms and contracts are enforceable provided they are validly made, which includes ensuring that the users are made aware of and accept the terms of the contract prior to purchase.

    Last modified 6 Apr 2018

    Governing law

    Governing law and choice of jurisdiction (venue for resolution) clauses will generally be upheld by state and Federal Courts in commercial contracts, provided such choice of law does not (and will not) avoid any mandatory law (eg, the ACL for consumer contracts) that would otherwise be applicable. That is, for example, one cannot contract out of the ACL for a consumer contract in Australia by choosing the law of a foreign jurisdiction to apply to govern the contract.

    Last modified 6 Apr 2018

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Warranty disclaimers which purport to exclude, restrict or modify the consumer guarantees as contained in the ACL are unenforceable.

    Warranties against defects must be provided in addition to the consumer guarantees. Documents that evidence a warranty against defect, which may include receipts, labels or packaging in addition to a more formal contract, must contain certain information including the following mandatory text which is provided under the ACL:

    Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

    Last modified 6 Apr 2018

    Enforceability of exclusions/limitations of liability indemnification

    Clauses that seek to exclude certain warranties or consumer guarantees or limit liability will be construed strictly against the person that seeks to rely on the clause.

    Clauses in standard form consumer contracts or standard form small business contracts that seek to limit or exclude liability are at risk of being considered unfair, and therefore void, under the unfair contract terms regime in the ACL.

    Consumer contracts cannot exclude or limit certain consumer guarantees provided under the ACL or limit or exclude liability for breach of them. Any clause that seeks to do this will be unenforceable and such conduct could be considered to be misleading or deceptive and lead to legal action being taken against a person who included such clause in a contract or statement to a consumer.

    Last modified 6 Apr 2018

    Indemnification

    Express indemnities are recognized and will generally be enforceable.

    Caps on liability under indemnification clauses are generally enforceable but, in some circumstances, may be considered unfair and therefore unenforceable.

    Last modified 6 Apr 2018

    Electronic signatures

    Electronic signatures are acceptable and enforceable in Australia in most instances in which the law requires a signature. Electronic signatures are valid if they are a method that identifies the person who is signing and indicates the person's intention with respect to the information communicated (eg, that the person agrees to the terms of a contract). The method of providing the electronic signature must generally be as reliable as appropriate for the purpose for which the electronic communication was given. Some laws exclude the use of electronic signatures in particular instances.

    Last modified 6 Apr 2018

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    Melinda Upton
    Melinda Upton
    Partner [email protected] T +61 2 9286 8209 View bio
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Intellectual property framework

Overview

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Australia

Intellectual property rights (other than trade secrets and common law trademark rights) are governed by the laws of the Commonwealth (ie, at a federal level) and interpreted by court judgments (ie, common law). There are no state or territory-based intellectual property laws.

Last modified 6 Apr 2018

Austria

In general, intellectual property rights in Austria are governed by specific federal statutory laws, as follows:

  • Copyright – the Copyright Act (Urheberrechtsgesetz)
  • Patent – the Patent Act (Patentgesetz)
  • Utility Models – the Utility Model Act (Gebrauchsmustergesetz)
  • Trademarks – the Trademark Act (Markenschutzgesetz)
  • Semiconductors – the Semiconductor Protection Act (Halbleiterschutzgesetz)
  • Designs and utility patents – the Designs Act (Musterschutzgesetz)
  • Trade secrets – not yet regulated

Certain other statutory laws protect other manifestations of intellectual property that do not fulfill the requirements of the intellectual property types cited above in various ways – in particular, the Act on Unfair Competition (Gesetz gegen den unlauteren Wettbewerb), which imposes a more general prohibition or limitation to takeover of other persons' intellectual works and offers certain amount of protection for trade secrets and know-how, the Criminal Code (Strafgesetzbuch), which penalizes certain trade secret related actions and the Commercial Code (Unternehmensgesetzbuch) and Company Register Code (Firmenbuchgesetz), which provide protection for names and company names.

Last modified 1 Jan 2018

Belgium

In general, intellectual property rights in Belgium are governed by the following Federal statutory laws:

  • Patent – Title 1 (Patents) of Book XI "Intellectual Property" of the Code of Economic Law
  • Copyright – Title 5 (Copyrights and Neighboring Rights) of Book XI "Intellectual Property" of the Code of Economic Law
  • Software – Title 6 (Computer Programs.) of Book XI "Intellectual Property" of the Code of Economic Law
  • Database rights – Title 7 (Databases) and Title 5 (Copyrights and Neighboring Rights) of Book XI "Intellectual Property" of the Code of Economic Law
  • Semiconductors – Title 8 (Topographies of Semiconductor Products) of Book XI "Intellectual Property" of the Code of Economic Law
  • Trademarks – Benelux Convention on Intellectual Property of February 25, 2005
  • Designs – Benelux Convention on Intellectual Property of February 25, 2005

In addition, certain other statutory laws may protect other manifestations of intellectual property that do not fulfil the requirements of the intellectual property types cited above, such as know-how, trade and industrial secrets, trade names, company names and domain names.

Last modified 1 Jan 2018

Brazil

Intellectual property rights are governed by the Federal Constitution and Federal laws.

Last modified 1 Jan 2018

Canada

As a general matter intellectual property rights are governed by Federal statutes.

Last modified 1 Jan 2018

Chile

As a general matter, intellectual property rights are governed by Law No 17,336 of Intellectual Property, and Law 19,039 of Industrial Property.

Last modified 6 Apr 2018

China

In China, intellectual property rights are primarily protected under four major intellectual property laws, the Patent Law, the Trademark Law and the Copyright Law, the Anti-Unfair Competition Law and their Implementing Regulations. In addition, there are a large number of regulations, rules, measures, policies and opinions issued by the Standing Committee of National People's Congress, the State Council and various administrative authorities which further address issues concerning application of the intellectual property laws. The judicial interpretations made by the Supreme People's Court also form a part of the legal framework.

Last modified 1 Jan 2018

Colombia

Colombia has a wide regulation on Intellectual Property consisting of international treaties, national laws and decrees, mainly governed by the resolutions of the Andean Community (CAN). According to article 6 of the National Constitution, the Colombian State has the obligation of protecting Intellectual Property. Article 151 of the Constitution states that the Congress shall dictate the legal regime on industrial property, patents, trademarks and any other intellectual property that may be protected.

Colombian Intellectual Property Regime is regulated by the Resolutions 486, 689 and 351 of the CAN and is divided in 2 main groups: copyrights and industrial property. Industrial property protects exclusive rights, which are recognized once the national authority on industrial property registers them. Copyrights cover 2 different rights: moral and economic rights, that may be held by same or different person and are recognized since their creation.

Two main principles govern intellectual property in Colombia: territoriality and competition. The principle of territoriality states that relevant authorities may grant or recognize rights within the territories where they have competency. International treaties may extend the protection of such rights to other countries. The principle of competition establishes that aright holder may defend a granted right against third parties, which allows free competition.

Last modified 23 May 2018

Czech Republic

Czech law belongs to the continental system of law (or civil law, as opposed to common law). Regulations covering intellectual property rights are primarily set out in various statutes issued by Czech Parliament.

The most important statutes are the following (each of them as amended from time to time):

  • Act No. 121/2000 Coll. on Rights Related to Copyright (Copyright Act)
  • Act No. 527/1990 Coll. on Inventions and Improvement Proposals (Patents Act)
  • Act No. 441/2003 Coll. on Trademarks (Trademarks Act)
  • Act No. 478/1992 Coll. on Utility Models (Utility Models Act)
  • Act No. 207/2000 Coll. on Protection of Industrial Designs (Industrial Designs Act)
  • Act No. 529/1991 Coll. on Protection of Topographies of Semiconductor Products (Topographies of Semiconductor Products Act)
  • Act No. 206/2000 Coll. on Protection of Biotechnological Inventions
  • Act No. 408/2000 Coll. on Protection of Plant Variety Rights
  • Act No. 452/2001 Coll. Protection of Designations of Origin and Geographical Indications
  • Act No. 221/2006 Coll. on Enforcement of Industrial Property Rights
  • Act No. 89/2012 Coll. Civil Code (Civil Code), providing general framework of civil law and regulating trade secrets

Many of these pieces of legislation are in compliance with relevant EU legislation, as the Czech Republic is a member country of the European Union.

Last modified 1 Jan 2018

Denmark

In general intellectual property rights are governed by EU regulations and directives as well as by Danish law.

Last modified 1 Jan 2018

Finland

The Finnish intellectual property legislation is largely impacted by European Union (EU) directives and regulations. Some of the national legislation has been jointly drafted with other Nordic countries. In addition to specific IPR legislation, the law relating to unfair business practices is also relevant between commercial entities. For cases of deliberate or grossly negligent infringement, criminal law provisions may also apply.

Last modified 1 Jan 2018

France

France is a civil law country.

Most of the rules and requirements applicable to intellectual property rights derive either from French law or European Union law and are codified in the French Intellectual Property Code.

Last modified 1 Jan 2018

Germany

German Constitution (Grundgesetz) refers protection of copyright and industrial property rights to exclusive legislation. In cases of exclusive legislation, only the Federal government has the legislative power.

Last modified 24 Apr 2018

Hong Kong

Hong Kong has an established legal framework for the protection of intellectual property rights in patents, trademarks, copyright and registered designs under various ordinances.

Last modified 1 Jan 2018

Hungary

Intellectual property rights are governed by individual state acts. In questions not specified by these acts, the Hungarian Civil Code (Act 5 of 2013 of the Hungarian Civil Code) is applicable.

Since Hungary is a member of the European Union, each intellectual property act shall be in line with the respective EU directives and regulations. In addition, certain EU regulations apply directly.

Last modified 1 Jan 2018

India

As a general matter intellectual property rights are governed by Federal statutes. However, trade secrets are not specifically protected by any legislation though they may be protected as contractual obligations, subject to the Indian Contract Act 1872 (Contract Act).

Last modified 1 Jan 2018

Indonesia

The intellectual property framework consists of the following key laws: Law Number 28 of 2014 on Copyright; Law Number 13 of 2016 on Patents; Law Number 20 of 2016 on Trademarks and Geographical Indication; Law Number 30 of 2000 on Trade Secret; Law Number 31 of 2000 on Industrial Design; Law Number 32 of 2000 on Layout-Design of Integrated Circuits; and Law Number 29 of 2000 on Plant Variety Protection. The new degree No. 8 of 2016 regarding recording of intellectual property licenses in the Directorate General of Intellectual Property was issued on February 24, 2016.

The government body responsible for the administration and registration of intellectual property rights in Indonesia is the Directorate General of Intellectual Property Rights under the Ministry of Law and Human Rights of the Republic of Indonesia.

Last modified 1 Jan 2018

Ireland

Intellectual property rights are largely governed by statutes, with the exception of the protection of confidential information (otherwise referred to as trade secrets), which is governed by contract and common law.

Last modified 1 Jan 2018

Israel

As a general matter, intellectual property rights are statutory rights, with the exception of trade secrets, which are protected under Israel's Commercial Tort Law as a civil tort.

Last modified 1 Jan 2018

Italy

As a general matter, intellectual property rights are governed by the Industrial Property Code (Legislative Decree No. 30/2005) the Italian Copyright Law (Law No. 633/1941) the Civil Code and ad hoc legislation.

Last modified 6 Apr 2018

Japan

Intellectual property rights including patent right, utility model right, design right, copyright, trademark right and trade secrets are specified and protected under each relevant intellectual property law.

Last modified 1 Jan 2018

Luxembourg

In general, the intellectual property rights in Luxembourg are governed by the following statutory laws:

  • Copyright – Law of April 18, 2001 on Copyright, Neighboring Rights and Databases, as amended by the Law of April 18 2004 and lastly by the Law of February 10, 2015 (the Copyright Act)
  • Database Rights (sui generis right, distinct from copyright) – Law of April 18, 2001, as amended by the Law of April 18 2004 and lastly by the Law of February 10, 2015 (the Copyright Act)
  • Patent – Law of July 20, 1992 amending the System for Patents for Invention, as amended by the Law of May 24, 1998 and lastly by the Law of December 18, 2009 (the Patent Act)
  • Trademarks – Benelux Convention on Intellectual Property of February 25, 2005 as approved by the Law of May 16, 2006
  • Industrial Designs – Benelux Convention on Intellectual Property of February 25, 2005 as approved by the Law of May 16, 2006
  • Semiconductors – Law of December 29, 1988 on the Legal Protection of Topographies of Semiconductor Products
  • Professor's Privilege/Ownership of publicly funded research – Special laws on the public funding of research results

Since July 1, 2016, the 80 percent partial exemption of revenue from intellectual property under article 50bis of the Law of 4 December 1967 on income tax is no longer available. A draft bill, No. 7163, was introduced before the House of Representatives in August 2017 which, when enacted, would provide an 80 percent partial exemption of revenue derived from intellectual property under certain restrictive conditions (to be BEPS-compliant) and which would apply in parallel (and non-cumulatively) with the former regime (until the expiry of the grandfathering period under that regime).

Last modified 1 Jan 2018

Mexico

Two Federal laws provide the core legal basis for protection of intellectual property rights in Mexico:

  • The Industrial Property Law (Ley de la Propiedad Industrial)
  • The Federal Copyright Law (Ley Federal del Derecho de Autor)

Last modified 1 Jan 2018

Netherlands

In the Netherlands, the intellectual property rights are governed by the following federal statutory laws:

  • Copyright – Copyright Act of 1912
  • Software – Regulation regarding software is included in the Copyright Act of 1912 (see chapter VI of the Copyright Act of 1912) implementing the EU Directive of May 14, 1991 on the Legal Protection of Computer Programs (91/250/EEG)
  • Patent – Patents Act of 1995
  • Trademarks – Benelux Convention on Intellectual Property of February 25, 2005
  • Designs – Benelux Convention on Intellectual Property of February 25, 2005
  • Semiconductors – Act of October 28, 1987 on the Legal Protection of Topographies of Semiconductor Products
  • Database rights – Databases (Legal Protection) Act of July 8, 1999
  • Trade name – Trade Names Act of July 5, 1921

In addition, certain other statutory laws may protect other manifestations of intellectual property that do not fulfill the requirements of the intellectual property types cited above, such as know-how, trade and industrial secrets, company names, domain names and misleading and comparative advertising.

Last modified 1 Jan 2018

New Zealand

Intellectual property rights in New Zealand are primarily governed by specific statutes: the Trade Marks Act 2002, Designs Act 1953, Patents Act 2013 and the Copyright Act 1994. However, these statutes have not codified New Zealand intellectual property law, and common law principles relating to intellectual property rights are still an important part of the intellectual property framework.

Last modified 6 Apr 2018

Norway

In Norway, intellectual property rights are governed by various Norwegian laws. Norwegian intellectual property legislation is based on various international agreements and EU directives and regulations implemented through the EEA agreement.

Last modified 6 Apr 2018

Poland

The regulations governing intellectual property rights in Poland include:

  • The Industrial Property Law Act (ustawa prawo własności przemysłowej), which regulates patents, utility models, industrial designs, trademarks and service marks, mask works and geographical indications
  • The Act on Copyright and Related Rights (ustawa o prawie autorskim i prawach pokrewnych), which covers the protection of the rights of authors to their works, the rights of producers of phonograms, and the protection of personal images
  • The Act on Combating Unfair Competition (ustawa o zwalczaniu nieuczciwej konkurencji), which protects trade secrets

Last modified 1 Jan 2018

Portugal

The fundamental intellectual property framework in Portugal is provided in two main acts: the Code of Copyright and Related Rights and the Industrial Property Code.

Last modified 1 Jan 2018

Romania

As a general matter, intellectual property rights are governed by statutory provisions, which are generally harmonized across the European Union.

Last modified 6 Apr 2018

Russia

As a general matter, intellectual property rights are governed by Part IV of the Russian Civil Code.

Last modified 6 Apr 2018

Saudi Arabia

Intellectual property rights are protected by a number of laws that have been passed by Royal Decree and are enforced by the courts. All laws in the Kingdom of Saudi Arabia (KSA) are subject to Shari'a principles.

The KSA generally operates by reference to the Hijri (or Islamic) calendar for official purposes. Careful attention is therefore required when making reference to protection periods and any timeframes associated with the different intellectual property rights, to ensure that relevant deadlines are not inadvertently missed.

Last modified 6 Apr 2018

Singapore

Intellectual property rights are governed by a body of local legislation in Singapore, such as the Intellectual Property Office of Singapore Act (Cap. 140), Patents Act (Cap. 221), Copyright Act (Cap. 63), Registered Designs Act (Cap. 266) and Trademarks Act (Cap. 332) among others (as amended and supplemented from time to time). The Intellectual Property Office of Singapore (IPOS) oversees and advises on the application of this legislation.

Last modified 12 Jan 2018

Slovak Republic

There is no complex legislative act governing intellectual property rights as objects of legal protection in the Slovak Republic. Instead, intellectual property rights are subject to national law, law of the European Union and international law.

As regards the national regulation, this is divided into various specific legal acts concerning the respective object of intellectual property.

These objects may be:

  • copyright, rights related to the copyright;
  • industrial rights, rights similar to the industrial rights.

In addition, there are several regulations of the European Union on intellectual property which apply in the territory of the Slovak Republic, as one of the member states of the European Union. Also, the directives of the European Union on intellectual property have been implemented into the legal order of the Slovak Republic. The international treaties governing the intellectual property rights, applicable in the Slovak Republic, are stated in the following text as well.

Last modified 6 Apr 2018

South Korea

As a general matter, intellectual property rights are governed by various Korean intellectual property statutes, including the Patent Act (PA), the Copyright Act (CA), the Utility Model Act, the Trademark Act (TMA), the Design Protection Act, the Unfair Competition Prevention and Trade Secret Protection Act (UCPA) and the Semiconductor Chip Act (SCA).

Last modified 1 Jan 2018

Spain

The Spanish Constitution establishes in the Article 149.1.9 that intellectual property rights shall be governed by Spanish National Statutes only. Self-Governing Regions (the Spanish equivalent of US states or German Länder) are not entitled to issue laws in this field.

Last modified 1 Jan 2018

Sweden

Intellectual property rights in Sweden are protected by various laws. Swedish intellectual property legislation is based on various European Union (EU) directives and regulations. The protection of trade secrets is provided for by law.

Last modified 1 Jan 2018

Switzerland

Intellectual property rights are governed by Federal statutes and by international treaties.

Last modified 1 Jan 2018

Taiwan

Intellectual property is regulated and protected in Taiwan under various laws, such as the Copyright Act for original works of authorship; Trademark Act for trademarks; Patent Act for invention, utility model and design; and the Integrated Circuit Layout Protection Act for integrated circuit layouts. The Civil Code is the basic law for any other intangible property right.

Last modified 1 Jan 2018

Ukraine

Intellectual property rights in Ukraine are mainly regulated by Civil and Commercial Codes as well as specific laws pertaining to separate intellectual property objects. Further, Ukraine has ratified a majority of international treaties pertaining to intellectual property rights protection.

Following Ukraine's ratification of the EU Association Agreement, Ukraine is bringing its intellectual property legislation in line with EU standards. Specifically, changes to the regulation of geographical indications, trademarks and activities of performers' rights societies are expected.

Last modified 6 Apr 2018

United Arab Emirates

In the United Arab Emirates (UAE), intellectual property rights are governed by the following Federal Laws:

  • Federal Law No. 15 of 1980 (Printed Matter and Publishing Law)
  • Federal Law No. 7 of 2002 (Copyright Law)
  • Federal Law No. 17 of 2002 (Patent Law)
  • Federal Law No. 37 of 1992 as amended by Federal Law No. 8 of 2002 (Trademark Law)
  • Federal Law No. 19 of 2016 on Combatting Commercial Fraud (Anti Commercial Fraud Law)

In addition, the UAE is a civil law jurisdiction, so the laws and regulations are codified. Court judgments are not routinely published. Moreover, UAE courts are not bound to follow the prior decisions of superior courts, although they are treated as persuasive. On this basis, it is difficult to predict with a degree of certainty how the law will be applied by the court.

Last modified 1 Jan 2018

United Kingdom

Intellectual property rights are governed by a variety of statutes and common law. The substantive provisions are generally equally applicable throughout the United Kingdom (comprising England, Wales, Scotland and Northern Ireland). As the UK is currently part of the European Union (EU), some of its intellectual property law derives from EU legislation.

The UK's vote in June 2016 to leave the EU has no immediate consequences and does not affect the position of the UK as an EU member state. There are no immediate changes to IP rights in the UK; however, the scope and status of these rights will be covered by exit negotiations, which are likely to continue until 20181.

1For the latest on legal developments related to Brexit, please see our Brexit information page.

Last modified 1 Jan 2018

United States

As a general matter, intellectual property rights are governed by Federal statutes with certain exceptions, such as trade secrets, that are also governed by state law.

Last modified 2 May 2018

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