10 Things You Need to Know About Intellectual Property for 2026

We look at some common intellectual property FAQs we get asked all the time on Copyright, Trade Marks, Patents and Trade Secrets.

Ideas are powerful and worth protecting. Our IP team are on hand to help you look after the things that make your business stand out, from brand names to tech builds.

1. What is Intellectual Property?

Put simply, intellectual property (IP) is an umbrella term for creations or works in various formats that are produced through human intellect. Intellectual property rights give the creator of a work the exclusive right to use, exploit and licence that work for a defined period. In Australia, the principal IP statutes are the Copyright Act 1968 (Cth), the Patents Act 1990 (Cth), the Trade Marks Act 1995 (Cth) and the Designs Act 2003 (Cth). Each protects a different subject matter and has its own rules on subsistence, ownership, term and infringement.

IP includes items such as computer programs, scientific or technical advancements, photographs, devices, works of authorship, methods and modes of operations, reports, analyses, processes or other information.

2. What are the different types of IP?

Many entrepreneurs do not understand how to protect their ideas and inventions and are clueless as to which type of IP protects their creative ideas and products. The following are the six main types of IP recognised in Australia:

Copyright

A copyright is a set of rights that automatically vests in literary and artistic work, music, software or movies. Copyright provides the right to reproduce the work, to perform and display the work publicly, to distribute copies, and (in Australia) to make an adaptation of the work. In Australia, copyright is governed by the Copyright Act 1968 (Cth) and registration is not required; protection arises automatically on creation. A 2025 US appeals court decision in Thaler v Perlmutter confirmed that copyright protection requires a human author, meaning purely AI-generated works are not registrable in the United States; the Australian position is similar in substance. We discuss copyright in further detail in this article on copyright.

Patents

A patent grants exclusive rights to the patent holder for a defined term: under s 67 of the Patents Act 1990 (Cth), the term of a standard patent in Australia is 20 years from the filing date. During that period, the patentee has the exclusive right to exploit the invention and authorise others to do so. Australia formerly had a second-tier innovation patent system, but it was phased out and no new innovation patent applications can be filed in Australia after 25 August 2021. We discuss patents in further detail in this article.

Trade marks

Trade marks are unique word(s), symbols or logos used to identify businesses or products. In Australia, registered trade marks are governed by the Trade Marks Act 1995 (Cth) and administered by IP Australia. The initial term of a registered trade mark is 10 years from the filing date and can be renewed indefinitely in 10-year increments. Registration gives the owner the exclusive right to use the mark in relation to the registered goods or services, and to take infringement action under Part 12 of the Act against unauthorised use of the same or a deceptively similar sign on the same or similar goods or services. Australia is a first-to-use jurisdiction: prior unregistered use of a mark in Australia can be a basis for opposing a later registration.

Trade secrets

Trade secrets cover confidential information of commercial value, such as formulas, processes, customer lists, source code, methodologies and know-how. Unlike copyright, patents, trade marks and designs, Australia has no dedicated trade secrets statute; protection comes from the equitable action for breach of confidence (the leading principles are set out in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, applied in Australia), supplemented by contract (typically non-disclosure agreements) and the duty of fidelity owed by employees. Confidentiality is maintained by keeping the information out of the public domain.

Designs

Registered designs protect the visual appearance of a product, including its shape, configuration, pattern and ornamentation. In Australia, registered designs are governed by the Designs Act 2003 (Cth) and administered by IP Australia. The initial term of registration is 5 years from filing, renewable once for a further 5 years (maximum 10 years). To be enforceable, a registered design must be certified by IP Australia. Design rights are commonly overlooked but are highly relevant to product and packaging design.

AI-generated content

AI-generated content is not a standalone category of IP, but it sits at the intersection of the categories above. Australian copyright law requires a human author. In the leading Australian case on AI inventorship, Commissioner of Patents v Thaler [2022] FCAFC 62, the Full Federal Court held that an artificial intelligence system cannot be named as an inventor under the Patents Act 1990 (Cth); the High Court refused special leave to appeal on 11 November 2022. The Australian Government confirmed on 26 October 2025 that it will not introduce a text and data mining exception to the Copyright Act 1968 (Cth) for AI training; instead, the Attorney-General's Copyright and AI Reference Group is considering licensing-based options. Question 11 below covers the practical IP implications for businesses building or using generative AI in more detail.

3. What is the purpose of Intellectual Property?

The purpose of IP laws is to promote inventions, new technologies and artistic expressions, while fostering economic growth. Intellectual property allows intellectual property owners to profit from their labour and recognise that their creative endeavours will be defended. This promotes creative innovation. Intellectual property owners are incentivised to create things that generate jobs, make processes more efficient, develop new technology, and excellence in the world around us.

4. What legal protections are available for IP?

Many laws have been implemented to protect IP, based on the different forms of IP. Unauthorised use of IP is described as an infringement. Owners should mark their IP appropriately (for example, the registered trade mark symbol ® for registered marks, and ™ for unregistered marks) so that third parties are on notice of the existing rights. These rights provide legal recourse through the courts to prevent and obtain compensation for IP infringement.

5. How do I protect my IP?

People work very hard to develop their IP, and that is why they want to ensure that nobody benefits from their hard work without their authorisation. Even though some IP rights are automatic, it is still at your discretion to vigorously protect your work. No entity/person is going to look out for trade mark infringement or copyright violations on your behalf.

To protect your IP, you will need to file a trade mark application with IP Australia, file a patent application with IP Australia (typically as a provisional application followed by a complete application within 12 months) and, in some jurisdictions outside Australia, lodge a copyright registration (however in Australia, copyright vests automatically provided all the elements of copyright are satisfied). For trade secrets, a written confidentiality (non-disclosure) agreement should be in place before revealing the trade secret to anyone.

You will also need to consider which international markets you will be targeting and whether you should protect your IP in that local jurisdiction. Legal and registration requirements differ for each market. The Madrid Protocol (for trade marks) and the Patent Cooperation Treaty (PCT) (for patents) provide centralised filing routes for protection in multiple jurisdictions.

6. When is the best time to protect my IP?

It is never soon enough to protect your IP. IP registration is time-dependent. Ordinarily, you will not be capable of registering your IP if there is somebody who owns and registered something similar or identical prior to you, so registration as soon as possible is ideal.

You might not have the funds to register/seek protection for all your IP rights from day one. However, that should not prevent you from building an IP strategy and preparing for registration.

Local registration is inevitable to guard your IP. Therefore, IP protection and strategic planning should be put into practice at least a year in advance (to complete the required IP registrations; IP rights cannot be enforced in most cases without registration).

To protect your rights, it is highly recommended that you register before meeting with potential partners, start selling online or attending trade fairs. Once you begin operation, the cost and risk grow higher, and you may have less preventative choices.

7. Are trade secrets and confidential information referred to as IP?

An unusual form of IP is confidential information and trade secrets. For instance, products or services, information regarding your customers, sales, pricing and business strategies that you did not want your competitors to know about.

You need to formulate rules to classify which information is confidential:

• When it requires to be labelled as such
• How it is retained safely
• Employees authorised to access it
• Circumstances in which it can be disclosed or who are allowed to reveal it
• Ensuring all employees be aware of rules

Ensure that you execute a confidentiality agreement from the onset to ensure that any outsiders are legally obliged to keep it as secret.

Where confidential information includes personal information, the Privacy Act 1988 (Cth) also applies. The first tranche of major reforms in the Privacy and Other Legislation Amendment Act 2024 (Cth) received Royal Assent on 10 December 2024. A new statutory cause of action for serious invasions of privacy commenced on 10 June 2025 and is set out in Schedule 2 to the amending Act. Penalties for serious or repeated interferences with privacy were significantly increased in 2022 and the OAIC's tiered enforcement powers were further enhanced in 2024. APP entities also remain subject to the Notifiable Data Breaches scheme in Part IIIC of the Privacy Act, which requires assessment of a suspected breach within 30 days and notification of the OAIC and affected individuals where serious harm is likely.

8. When does my employer own my IP?

The position varies by IP right and depends on the contract. For copyright, s 35(6) of the Copyright Act 1968 (Cth) provides that where a work is made by an employee under a contract of service in pursuance of the terms of employment, the employer is the owner of any copyright subsisting in the work (subject to limited journalism-related exceptions in s 35(4) and any contrary agreement). For patents, ownership in Australia is determined by common-law principles: an invention made by an employee in the course of carrying out their employment duties typically belongs to the employer, but the position is fact-specific. For independent contractors, the default is that the contractor retains ownership of any IP they create unless the contract assigns it; this is a frequent source of dispute. Express written assignment of IP in employment and contractor agreements is therefore strongly recommended.

9. Enforcing IP rights may be expensive, is it worth investing in IP rights if the business cannot afford to prosecute others?

Having an IP strategy enables owners to license IP rights to third parties, and also appends a value to a company and may be necessary for potential investors/buyers.

If you must enforce your IP rights, it does not need to be done expensively. IP disputes are frequently settled without going to court; infringers might retreat after receiving a cease-and-desist letter notifying them of your IP rights, or may agree to negotiate a settlement.

10. How can I stop somebody else from infringing my IPR?

It is an excellent idea to assert your IP rights whenever possible: for instance, labelling goods with the patent number, using the ® symbol next to a registered trade mark, the ™ symbol next to an unregistered mark, and the © symbol on copyright works (though in Australia copyright protection arises automatically and the © symbol is not a legal requirement, it serves as a clear notice and supports proof of authorship in cross-border disputes).

Detecting infringements may be easy, for instance, if you see a new competitor applying a name confusingly similar to your registered trade mark, or manufacturing goods which you think are related to your patent. Instantly provide notice to them that you think they are infringing your IP rights, and endeavour to settle the situation without recourse to litigation. It is essential not to threaten litigation which might end up being unjustified: unjustified threats of infringement proceedings are themselves actionable under s 129 of the Patents Act 1990 (Cth), s 129 of the Trade Marks Act 1995 (Cth) and equivalent provisions in the Copyright Act 1968 (Cth) and Designs Act 2003 (Cth).

11. What do I need to know about IP in AI-generated content?

AI-generated content is creating new IP questions for every business that uses, builds or sells AI-driven products. The Australian position turns on four points.

Copyright in AI outputs

Australian copyright requires a human author who has exercised independent intellectual effort. Where an AI system generates content with little or no human creative input, the position on subsistence of copyright is uncertain and there is no Australian appellate decision directly on point. Where a human uses AI as a tool but provides substantive prompting, selection, arrangement and editing, the work is likely to attract copyright in the usual way, with the human as author. Workflows should be designed so the human contribution is documented and identifiable.

Training data and inputs

Using third-party copyright material to train an AI model without a licence is likely to infringe copyright in Australia, since reproduction is a restricted act under s 31 of the Copyright Act 1968 (Cth) and the Act has no text-and-data-mining exception. On 26 October 2025, the Attorney-General confirmed that the Australian Government will not introduce a TDM exception, and is instead working with the Copyright and AI Reference Group on licensing options. Businesses that train or fine-tune AI models on Australian-sourced data should document the lawful basis for that use (licence, in-house data, properly anonymised data, or the data subject's consent).

AI and patents

An AI system cannot be named as an inventor on an Australian patent application. The Full Federal Court held in Commissioner of Patents v Thaler [2022] FCAFC 62 that an inventor under the Patents Act 1990 (Cth) must be a natural person, and the High Court refused special leave to appeal on 11 November 2022. Inventions made with the assistance of AI tools can still be patentable, provided the inventor named on the application is the natural person responsible for the inventive concept.

AI and trade marks

Trade mark registration in Australia is open to a natural person or a body corporate as the applicant, so the use of AI to design a mark does not in itself prevent registration. The more practical risk is clearance: AI-generated names and logos still need to be cleared against the Register of Trade Marks and existing unregistered use, and AI tools that suggest names tend not to perform a meaningful clearance check.

What this means in practice

Three steps for businesses using or building generative AI: keep evidence of meaningful human contribution to anything you intend to claim copyright in; document the source and licensing status of any data used to train or fine-tune models; and make sure your employment, contractor and customer agreements address ownership of AI inputs and outputs explicitly, since the default common-law position is unsettled.

Navigating your intellectual property?

In need of intellectual property law support? Biztech Lawyers is a multi-award-winning law firm, known for fuelling and protecting tech innovation worldwide. Book a call with our team.