Intellectual property in technology

A team from Victoria University of Wellington comprising Susan Corbett, Louise Starkey, and Ann Bondy undertook a project to develop intellectual property and technology education support material. This study was made possible under the Growth and Innovation Framework (GIF) – Technology Education Initiative. 

The project aimed to provide teachers and students with information about intellectual property rights relevant to the technology curriculum. The goals were to ensure students: 

• understand and respect others' intellectual property 
• know how to protect their own ideas 
• are aware of how to legitimately make use of others' intellectual property. 

The project evaluated the effectiveness of the materials by assessing the awareness of IP concepts of technology teachers and students after 12 months' use of the new resources (working with one school to enable it to be completed within the project timeframe). 

About the team 

Susan Corbett 

Project leader Susan Corbett is a senior lecturer in Commercial Law in the School of Accounting and Commercial Law in the Faculty of Commerce. She teaches, researches, and has published extensively in the area of intellectual property law. 

Her current areas of interest include the interface between copyright and digital culture, educating the community about intellectual property rights, and information technology law. 

Before gaining her legal qualifications, she taught secondary school science and mathematics. 

She won the 1997 Loman Friedlander Prize, awarded by the New Zealand Institute of Patent Attorneys, for her paper “Copyright Law and Distance education in New Zealand: An Uneasy Partnership”. Susan is also a member of the advisory group for the Ministry of Education's proposed copyright website. 

Louise Starkey 

Louise Starkey is a lecturer in Social Sciences in the Faculty of Education. She is an experienced secondary classroom teacher and senior manager with extensive experience in resource development in all curriculum areas. She worked for some time at the Correspondence School. 

Louise has particular expertise in e-learning and digital resource development. Louise currently teaches in primary and secondary pre-service teacher education programmes particularly in relation to the Social Studies curriculum. In addition, she teaches a course that focuses on using information technologies to engage today's learners. Louise holds a MEd (Hons) from Massey University. Her research interests include teaching and assessment in the information age. 

Ann Bondy 

Ann Bondy is a senior lecturer and curriculum leader in technology education. She is currently completing her Ed D in technology education. She has been a classroom teacher and currently teaches pedagogical papers in the primary and secondary pre-service teacher education programmes on the technology curriculum. 

Her involvement at both local and national levels in Technology Education New Zealand (TENZ) gives her an extended network of current technology teachers and those involved nationally in technology education. She, too, has considerable experience developing materials and classroom resources to support and foster learning and assessment in technology education.

Intellectual property

Intellectual property (IP) is an original, creative idea that can be developed into and that underlies something more tangible, such as an object, a poem or a story, or a drawing. 

Just as there are legal rights and obligations associated with the ownership of physical property, there are legal rights and obligations associated with the ownership of IP. 

A book, for example, is tangible, physical property that can be bought and owned. A book can be sold or lent to others. The words and pictures in a book are IP and are likely to be copyright, owned by the author and publisher of the book. You cannot sell or copy those words and pictures (except small extracts for your own study or research) unless you also own the IP in the book. 

Students and IP rights

The IP rights most relevant to Technology students are trade marks, patents, registered designs, and copyright. Each of these IP rights is property that can be owned, sold, hired, licensed (a licence is simply a legal term for a permission to do something), or given away. 

IP key terms

Find more about key terms related to IP below.

A good idea should be protected by keeping it secret until it has been developed into drawings or plans (which can be copyright) or a product (which can be patented). 

Confidentiality agreements 

• Can be used to prevent others stealing ideas while they are under consideration for development. 
• Allow people to discuss their ideas with others, for example manufacturers 
• Such discussions will not count against them should they eventually decide to apply for a patent. 

Using a confidentiality agreement 

A student can use a confidentiality agreement when they are working with a client. This is best signed at the start of the business relationship when the ground rules or expectations from the relationship are discussed 

Confidentiality agreements available for use 

There are two confidentiality agreements included on this resource. 

The first is a detailed one that can be used where the student is likely to further develop the product at the conclusion of the project. The other is a brief to be used with most client/student relationships.  

See Materials that come with this resource to download: 

• Confidentiality agreement (.doc) 
• Confidentiality agreement brief (.doc) 

An example of the use of a confidentiality agreement 

A student has developed a design for a storage device that will organise and manage up to ten different rechargers for portable electronic devices. The student's client is a local electronics business whose sales representatives are required to use and demonstrate electronic devices. 

The confidentiality agreement will be signed by the student (the discloser) and the manager of the business (the recipient). 

The information to be kept confidential is likely to include the design and the details of the storage device. The manager's signature will also bind any sales representatives from that company to confidentiality about the student's design. (See clause 2(b) in the Confidentiality agreement (.doc).) 

As the design progresses, the manager of the business may suggest that the student could manufacture a number of these storage devices and sell them. The student then uses the second confidentiality agreement and explores whether to undertake further IP protection such as a patent or registered design.

Copyright protects original written works, computer programs, music, art and designs, photographs videos, movies, broadcasts, tape recordings, and CDs – in whatever format they are available, including online. 

Copyright owners can legally prevent others copying their work, issuing copies to the public (such as by selling), making an adaptation of the work (such as writing a film script from a book), performing, playing, showing, or broadcasting the work in public. 

Copyright comes into effect immediately – you do not first need registration. 

Protection lasts for a certain term of years, depending on the kind of work and the country. For example, in New Zealand, a written work is copyright for the lifetime of the author plus an additional 50 years. Once the term of copyright has expired, the work falls into the public domain for anyone to use. Printed works beyond that limit, such as the works of William Shakespeare, are no longer copyright. Anyone can publish them or adapt them for other media, such as the cinema. 

However, a recently published edition of a work or body of work has its own copyright, usually for 25 years. Thus, a recently published volume of Shakespeare's plays cannot be photocopied without permission from the publisher 

Copyright in industrial designs 

Designs that are industrially applied are protected in New Zealand by copyright for a term of 16 years. "Industrially applied" means when more than 50 copies of the article are made or when the article is produced in lengths such as sheets or piping. 

The copyright in industrial designs actually protects the 2-D drawings or plans (as artistic works) from which the 3-D products are then manufactured. 

Most overseas copyright laws do not protect industrial designs. Overseas manufacturers need to apply for a patent or a registered design. 

Copyright and fair dealing 

Copyright is not a monopoly like a patent or registered design – the defence of fair dealing applies to some uses of copyright works that are permitted by law for the public benefit. The reason for the defence is partly because the copyright term is much longer than other Intellectual Property (IP) rights. The problem is that only the courts can decide what is fair – so it can be risky to rely upon fair dealing. 

Examples where the defence is likely to apply include copying small excepts of a copyright work for a person's own private study or research provided it is "fair" to do so (in rare circumstance this could be a full copy), and quoting extensively from a copyright work for criticism or review. 

Moral rights 

Moral rights are a way of acknowledging the reputation of an author of certain copyright works. They are particularly important when the copyright in the work does not belong to the author – for instance because the copyright belongs to their employer or their publisher. The term of moral rights is the same as the term of copyright. 

Authors retain the right to be acknowledged as the authors of the work, and they must assert that right. 

Authors also have the moral right not to have their work subjected to derogatory treatment which might damage their reputations – for instance reproducing someone's artistic work as a cartoon or republishing work commercially when it is out of date and incorrect. 

A third moral right is that of wrongful attribution. This means wrongfully stating that a certain person created a copyright work when in fact they did not. 

Moral rights do not apply to all copyright works – one important exception is computer programs. 

Copyright licences for schools

The Copyright Act permits some uses of copyright works for educational and library purposes. However, the permitted uses are limited and inadequate for much teaching. 

One example is where multiple copies of copyright literary works are needed for students. As a result, New Zealand schools and universities pay for a copyright licence from a collecting society representing authors and publishers. 

Primary and Secondary Schools Licence – a simple, affordable copyright compliance solution provided by Copyright Lecensing New Zealand. 

This licence allows teachers to make multiple copies of parts of copyright literary works for teaching purposes. In return the organisation pays royalties to authors and publishers whose works are copied for educational purposes. 

A similar collecting society is APRA AMCOS – Australasian Performing Right Association Limited (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS). These grant permissions for the performance and use of recordings of copyright music both in schools and commercially. 

Copyright organisations

• Copyright Licensing New Zealand (CLNZ) provides licences to help make copying, scanning, and sharing printed works easy and helps everyone who copies and shares anything from books and journals do so legally. 
• Creative Commons is an international nonprofit organization that helps overcome legal obstacles to the sharing of knowledge and creativity.  
• One of organisation's service is providing a selection of free downloadable licences for copyright authors to attach to their digital works. 
• Creative Commons: About CC Licenses: Choose from six basic licences. The least restrictive licence permits others to add to or amend a work, even for commercial reasons, provided they acknowledge the original author. The most restrictive licence allows others to download and share works with others so long as they mention the authors and link back to them, and they cannot change the work in any way or use it commercially. 
• The original Creative Commons licences were based on United States' copyright law. They have been used internationally for some time. 
• New Zealand has recently developed its own versions based upon our own copyright law. These are more appropriate for New Zealand copyright owners. 
• Creative Commons: Public Domain tools enable authors and copyright owners who want to dedicate their works to the worldwide public domain to do so.

Patents protect an invention. 

The main kinds of inventions that can be patented are: 

• a useful product that is new or improved 
• a new or improved process that can be used in industry 
• a new computer technology. 

You pay a fee to the Intellectual Property Office of New Zealand (IPONZ) when you apply for a patent. 

Conditions of a patent 

A patent will only be granted if an invention is novel – that is, previously unknown in New Zealand – and not obvious (it must show an "inventive step"). 

IPONZ has special arrangements for permitting the public display of inventions at events prior to applying for a patent. 

This is true for Science fairs. The patent must be applied for within a specified time after the display. In addition, other procedures must be followed, so check the IPONZ website well before an event. 

Note, too, that the patent must be applied for within a specified time after the display. 

Length of a patent 

A patent is granted for four years. 

It can be renewed regularly up to a maximum term of 20 years, after which the patent expires. For example, the patent for James Dyson's bagless vacuum cleaner has now expired after 20 years. As a result, other manufacturers do not need his consent to make similar products. 

Benefits of a patent 

Owning a patent means having the legal right to prevent others in New Zealand commercialising your invention. 

In some situations, the patent holder might need to take someone to court, which could be costly. In this circumstance, the patent holder does not have to prove the invented product was copied, only that the same process of making it has been used commercially without your permission. 

Patents benefit everyone because they place information in public for others to develop.

The external appearance of some products can be protected by registering a design right at Intellectual Property Office of New Zealand (IPONZ). A design right protects a new or original shape, pattern, or decorative finish that has been applied to the product by an industrial process. 

Although most registered designs will also be copyright (which is free and arises automatically), registered design protection is stronger. 

Length of a registered design 

The registered design will be granted for five years, and it can be renewed regularly up to a maximum term of 15 years. After fifteen year, the registration expires. 

The kind of protection is similar to a patent. The holder of the registered design does not have to prove that the design was copied, only that the same design has been used commercially without permission. 

Registered design versus copyright 

Many New Zealand manufacturers rely upon the protection for industrial designs available under the Copyright Act, so they do not apply for registered design protection. 

However, overseas copyright laws do not generally protect industrial designs. Thus, someone planning to export their articles should apply for registered design protection in each country. 

Case in point: A lavatory unit

Registered designs have been obtained in New Zealand for a lavatory unit, comprising a seat head, and back flap connected by a moulded hinge, computer screen icons, and light fittings.

A trade mark is often one of the most valuable parts of a business. Over time, consumers start to associate a trade mark with goods and services of a certain quality. For instance, the Nike trade mark is worth much more than the individual products produced by Nike. 

A brand or logo distinguishing the goods or services of one trader from another can be registered as a trade mark at IPONZ. You pay a fee to IPONZ when you apply to register a trade mark. 

The main requirements for registration are that the trade mark is: 

• described graphically, that is, in words or pictures 
• distinctive (unusual); not something descriptive of the goods or services (because that would prevent other traders using that word) 
• neither misleading nor deceptive 
• inoffensive to any section of the New Zealand community, including Māori. 

A trade mark is registered for one or more particular classes of goods or services in New Zealand. Nobody else can use the registered trade mark for trading purposes for goods or services of the same class. If they do, a legal action can be brought against them. 

Other traders might register the same trade mark for different kinds of goods and or services. However, trade marks that are considered world famous cannot be registered in New Zealand by another trader for any class of goods. 

You are entitled to display the international copyright symbol © after a registered trade mark. A registered trade mark never expires so long as it is continuously used by its owner for commercial purposes and a renewal fee is paid to IPONZ every ten years.

Once an idea is developed into a commercial product, the developer could choose to continue to keep the way it is made a trade secret. Any employees who need to know the trade secret would have to sign a confidentiality agreement in their employment contracts. 

Length of a trade secret 

The trade secret lasts forever, provided nobody reveals the information. For example, the recipe for Coca Cola has remained a trade secret for over 100 years. 

What happens if a trade secret is revealed? 

If a trade secret is revealed, the only remedy is to sue for damages. However, the secret is already out in the open, so the cost of litigation may be prohibitive. 

In addition, the developer cannot legally prevent somebody independently working out how to make the same product by reverse engineering the process. 

Trade secret versus patent 

While a patent protects a tangible thing (the unique invention), a trade secret is intangible (the idea behind the development). Because the trade secret does not provide ideas for the public to use or develop, its sole benefit is to the manufacturer of the product.

This page was originally written by Susan Corbett in response to the year 12-13 student work done at Tauranga Boys' College. 

Just as there are several different stages of development of a product, there are different kinds of intellectual property (IP) implications. Sometimes certain IP that is relevant to one product category will not necessarily be relevant to another category. 

For instance, one product might be suitable to protect by a registered design or by relying upon copyright. Another might need to be protected by a patent. 

At the beginning of a project developers are unsure if they will eventually develop something that is likely to have commercial value. Thus, it is advisable to protect an idea and its early stages of development by keeping them secret. Ask people involved in the discussions to sign a confidentiality agreement. Anyone who talks about their invention or design in public cannot file a valid application for a patent or a registered design afterwards. 

Drawings and designs, including CAD models of students' ideas, are copyright. No formality is needed for this protection – it arises automatically. Students should put their names and the full date on any such items. By doing so, they establish a clear record of their copyright ownership. 

Because students are making their products at school, usually with the help of teachers and the use of some school equipment, there is a possibility that the school itself might be entitled to claim that it is a joint owner of the IP in a student's product. 

This highlights the importance of New Zealand schools having intellectual property policies, which set out clearly the relationship between the school, teachers and students with regard to intellectual property created on school premises. 

If a student's product appears to have commercial value, it might be worth protecting the IP by applying to the Intellectual Property Office of New Zealand to register a patent or design. 

This is a complicated, time-consuming process. While it can be done by a non-legally qualified person, often it is safer to enlist the assistance of a patent attorney. 

At this stage students might find it useful to explain their product to a potential investor who could assist with the costs. Remember that students who do this should always ask the investor to sign a confidentiality agreement. Such an agreement safeguards the students' ownership of their ideas, although it does not necessarily provide 100% security. 

The only way to be completely safe is to remain quiet and never discuss a new idea or product with anyone. 

The fact that an idea, product, or process has only ever been discussed under the auspices of a confidentiality agreement is considered to preserve the novelty of the idea for the purposes of applying to register a patent or design. 

IPONZ has developed a procedure called "gazetting" that allows students who display their product at gazetted public events, such as some school science fairs to retain their claims to novelty, provided the student applies for patent or design registration within six months of the gazetted event. 

The procedure for gazetting, and more information about its effect, can be downloaded from the IPONZ Information Library. This important if you believe you may wish to patent your invention in the future. 

Instead of registering a patent or design, some inventors prefer to "flood the market" with their new product. They use the protection of a registered trade mark to build up a reputation for the product. 

This can be an effective strategy, but it does not prevent competitors copying a product and putting their own versions on the market. The inventor would then have to keep ahead of competitors by regularly developing newer versions of the product or by convincing customers that products sold under their trade mark are better quality, or more reliable than those of competitors.

Students can look in shops or search the web for examples of items that fall under Intellectual Property (IP) rights or that may contain trade secrets. 

They could research current case studies of IP issues or develop a flow chart that shows how to protect a design. 

See Materials that come with this resource to download:  

• Intellectual Property survey (.pdf)
  Use this survey to find out what your students know and understand about IP, what they want to know, and where they could build their knowledge. 
• Intellectual Property quiz (.pdf)
  Use this short multiple choice quiz as a starter or a re-focus activity. 
• Intellectual Property chart (.pdf)
  Use this chart to record student information about IP protections and to help students compare what is provided in patent, registered design, copyright, trademark, creative commons, and confidentiality agreement.

WIPO (World Intellectual Property Organisation) is a global database that provides free of charge access to legal information on intellectual property (IP), including IP laws and regulations. 

WIPO: What is intellectual property has a downloadable PDF file, which introduces the main types of IP, explains how the law protects them, and explains the work of WIPO. 

WIPO: Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples has a download a PDF of the full document that outlines the recommendations and guidelines for cultural and IP rights of indigenous peoples. 

Intellectual Property Office of New Zealand (IPONZ) has detailed information about trade marks, patents, and registered designs.The site also has databases of registered patents, trade marks, and designs. Anyone can search the databases to check that a product or mark has not already been registered by somebody else. Note that copyright is not registrable anywhere – it arises automatically by law. 

Creative Commons has information about creative commons in a range of situations, such as journalism, brochures, posters, case studies, and more. Resources are provided via PDFs, videos, and links to external sources. 

The Electronic Frontier Foundation (EFF)  is a non-profit organization established to raise funds for lobbying, litigation, and education about civil liberties on the Internet. EFF is a United States-based civil liberties group "defending freedom in the digital world" by protesting about the expansion of intellectual property rights at the expense of the public domain.