Intellectual Property
What is intellectual property?
Intellectual property (IP) is the broad term we use for the range of property rights that protect "creations of the mind'', for example inventions, literary and artistic works, images, names, symbols and commercial designs.
The main types of IP rights are patents, trade marks, designs, copyright, geographical indications and plant variety rights (or plant breeders' rights). These are each described in more detail later in this guide. Like other forms of property, IP rights can be bought, sold, licensed or given away.
IP rights have sometimes been used by traditional knowledge holders to protect certain collective traditional practices of indigenous communities. It is important to note that in some cases more than one kind of IP right can apply.
Quick summary:
| IP right |
Description |
For example |
| Copyright |
Original literary, artistic and musical works; performances, sound recordings and broadcasts |
Waiata, kapa haka performances, koauau tunes, weaving, carvings jewellery, books |
| Patents |
New inventions |
New products, manufacturing processes, new chemical compounds, computer technology and software |
| Designs |
Commercial designs |
Jewellery, fabric designs, ornaments |
| Trade marks |
Brands, logos, names and symbols |
Toi iho™ māori made™ |
| Geographical indications |
Names of origin |
Champagne for French wine |
| Plant variety rights |
New plant varieties |
New varieties of apples |
Why do we have intellectual property rights?
IP rights enable people who have created new works to control for a limited time what others may do with their works. This exclusive right provides artists, creators and innovators with the opportunity to benefit financially from their creative efforts and any investments they have made in producing this new work.
In economic terms, these potential benefits are what provide the incentive for people to invest time and money in new creative or innovative activities.
Being granted an IP right comes with certain conditions, and these vary depending on the nature of the right.
For example, being granted a patent gives the maker of a new invention particular exclusive rights for a maximum of 20 years11. These include the right to exclude other people from making, using or selling the patented invention while the patent is in place. In exchange for these rights, the patent owner must disclose the details of the invention. This is to encourage the sharing of information and add to society's collective knowledge.
It may stimulate other inventors to build upon the innovation in question, which means the body of knowledge in relation to a particular innovation or invention increases still further. This process is known as "cumulative innovation".
Although, from an owner's perspective, it may seem like the greater and longer the protection the better, in practical terms IP rights are essentially economic rights. These encourage people to continue to innovate for their own benefit and the benefit of society as a whole.
There needs to be a careful balance between the protection of those who own IP rights and the wider need for society to encourage creativity, innovation and growth.
How can intellectual property rights help my business or organisation?
Regardless of what product your business/organisation makes or what service it provides, you are probably regularly using and creating IP.
To survive and grow your business, you need to know how to protect, manage and get the best out of your IP assets and also how to avoid conflict with somebody else's IP rights.
The strategic use of IP can make your business much more competitive. For example, IP can:
- generate an income that could improve your business's market share or profit margins;
- help prevent other businesses "free riding" on your research and development of new and better products; and
- increase the value or worth of your business in the eyes of banks and other investors.
This is particularly relevant in the event of a sale, merger or potential acquisition of your business. Your IP assets may not just significantly raise the value of your business (as is often the case), they may be the primary asset a prospective buyer is interested in.
How do I protect my intellectual property?
With the exception of copyright, which arises automatically when any original work is created, your IP assets must generally be registered to gain protection.
The Intellectual Property Office of New Zealand (IPONZ)2 is responsible for the registration of trade marks, patents and designs. However, if you are in the business of breeding new plant varieties, you need to approach the New Zealand Plant Variety Rights Office (NZPVRO) for advice on how to register for plant variety rights (PVR)3.
What do I need to do to make my intellectual property rights work for me?
To ensure your IP rights work for you, you need to follow four key steps:
Acquisition – The first step is to acquire IP rights over your IP assets by registering at IPONZ for trade marks, patents or designs or NZPVRO for plant varieties.
Exploitation – Essentially this means that the protection of IP isn't there for its own sake. It is there to give you the opportunity to exclusively use or "exploit" your IP assets. You may be doing this in a variety of ways, including manufacturing and selling the goods or services yourself, authorising others to do so through licence and franchise agreements, or on-selling your IP rights to a new owner.
Monitoring – It's important to monitor your IP to identify possible infringement of your IP rights.
Enforcement – The final step is to enforce your IP rights if they have been infringed. As the IP owner, you are responsible for enforcing your IP rights.
The Ministry recommends you seek the advice of an IP lawyer or registered patent attorney to help you in this process.
How do I get IP protection overseas?
Again with the exception of copyright, IP rights registered in New Zealand are only protected in New Zealand. Each country has its own IP laws and regulations. There is no worldwide trade mark, patent, design or plant variety/breeder's right. It is possible, however, to file a multi-country application (like a European Community Trade Mark (CTM) application or Patent Cooperation Treaty (PCT) application) as a first step towards protecting your IP rights in other countries.
The WIPO website contains information on international IP protection. IP law is complex and the Ministry recommends you get professional help from a registered patent attorney.
Copyright is different because it is not registered. When an original work is created in New Zealand, it is not only protected by copyright in New Zealand, but also automatically protected under the copyright laws in most other countries as a result of international treaties to which New Zealand and other countries are members.
What role can IP have in the protection of mātauranga Māori?
While there are limits to the protection IP rights can provide for mātauranga Māori, a number of existing forms of IP rights can give some protection. Some IP rights, such as copyright, are available to protect contemporary expressions or adaptations of mātauranga Māori (not the underlying mātauranga Māori or traditional knowledge). Other IP rights, such as trade marks, can be used to certify the authenticity of Māori products, and the action of "passing off" (see page 38) can be used to fight false claims of indigenous authenticity. The sections that follow on the different IP rights and ways of enforcing them can provide information on how they may be of use to holders of mātauranga Māori.
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