LEGALLY SPEAKING - PAUL SUGDEN

"If you come up with an idea, technique or process and it doesn't meet the requirement of patenting, and you don't want to keep it secret then there is little protection given to your ideas as ideas."

Recently there has been a lot of consideration of plagiarism and its meaning in the context of dyeing techniques, fabric bonding processes, and the use of creative styles developed by an individual which are taught in classes to others. What rights do the participants have to then go and teach these techniques to others? Can't the participants subsequently teach these courses under different names but using the same techniques? Do they have to accredit the original producer? How are these rights protected under the law? This is perceived as a very thorny issue as the ethical debate often indicates the original producer or ethnic group should be accredited, in the same way that we accredit famous sayings to people. Zsa Zsa Gabor said, "I have never hated a man enough to give him his diamonds back." Truly her line, or is it?.

The problem is that this purist form of ethics is not what the legal system recognises as a practical method of resolving the competing issues of rights that works can create. How far does one have to go in the issue of accreditation to avoid the allegations of plagiarism and copyright infringement? Would it be sufficient to state that the famous saying was from an anonymous, unknown source, or do you have to quote the complete source/time/date/publisher etc to comply?

The issue of plagiarism raises ethical issues as well as legal ones, but the aim of my next series of articles is to examine how and where a person stands legally on these issues, to hopefully remove some of the mystique that surrounds them. Here we are considering the protection given to techniques and processes. This is a very complex issue as it deals with the overlap between the laws of copyright, confidential information, patent law and passing off, not just the concept of plagiarism.

A technique for a new method of dyeing, weaving or bonding materials together is really what the law considers an idea. Ideas are generally protected by patents (Patent Act 1990) or through the obligation of confidence, not through the laws of copyright and plagiarism as is often thought. This is an important distinction.

Obtaining a patent is a very complex process; many techniques in the textile world would not meet the stringent requirements for this form of protection. Some points to bear in mind; patent attorneys are the only persons who can lodge a patent; also, patents are expensive and are territorially based - so if you have a patent in Australia but do not obtain registration of the patent in another country then the patented process or product can be used without permission of the owner in Australia, or accreditation in the countries where the is no patent available.

If a patent isn't available, can a person still have protection? The answer is yes, but it under the obligation of confidence for information which is in fact confidential. The requirement are that the information must of itself be of a confidential nature, given in a confidential relationship and there must then be improper use made of the confidential information. The difficulty with this approach is that the information about a technique in, say, dyeing fabric can be confidential in that it is secret and not known - but the moment it is disclosed to a person without requiring the recipient of the information to keep it confidential, it has lost is protection. In addition, if the technique can be reverse engineered (recreated) from the product without knowing the process then it will also avoid the problem of confidential information. Confidential information works best for items such as the formula for Coca-Cola, which hasn't been successfully reverse engineered.

Now let's look at the issue of copyright and ideas as this is often where many misconceptions arise. Copyright will only protect the form of expression, not the ideas, concepts or information contained in the work itself. Copyright looks at originality or expression and the way the ideas are expressed, not the originality of the actual idea - ideas are to be considered free for people to use and develop.

Regrettably, this is an emotional area, as everyone says 'so and so should accredit me as the person who first came up with the idea'.The issue of accreditation only arises if the form of expression is copied and false accreditation occurs, in that you say it is someone else's work when it wasn't. The only other way to prove ownership, separate to this issue of copyright accreditation is for the developer of the process, technique or idea to prove they are so well known for that idea, technique or process that they have a reputation in it and are identified as the expert in the industry in that technique. This we will examine in a later article dealing with the action of passing off. Passing off is very hard to prove - it can be proved within industry the technique is often given the name of the person who developed it.