At the broadest level, the law recognises a difference between the rules applying to tangible and intangible property.
Intellectual property law concerns rights associated with intangible property, being ideas, information and other results of intellectual effort and creativity.
Why is intellectual property different from other property?
The principal reason for intellectual property being governed by different rules from physical property (real property or chattels) is that the owner of an intellectual property right cannot necessarily prevent, in physical terms, others from using his or her intellectual property.
Since intellectual property is regarded as useful to society, Parliament and the courts have developed rules which recognise and protect the effort, investment or creativity involved in producing such material.
What is IP law?
Intellectual property law consists of a series of statutes and rights arising at common law. Use of one party’s intellectual property by another will often bring a number of different laws into play depending on the circumstances, although there are also some gaps between the different regimes.
The principal intellectual property rights are statute-based. The major intellectual property rights in New Zealand are pursuant to the Patents Act, the Trade Marks Act and the Copyright Act. The prohibitions contained in the Fair Trading Act also provide traders with an opportunity to object to certain conduct, and the Fair Trading Act has largely (but not completely) subsumed the common law tort of passing off in this country.
The common law actions of passing off and breach of confidence round off the list of the most common intellectual property rights most relevant to general practitioners.
Use of intangible property is not actionable of itself unless it amounts to a breach of a particular law. The value of each monopoly reflects the extent to which an intellectual property owner can prevent a third party from acting in a particular way, and the amount which others would pay in order to use the right.
Intellectual property rights can generally be sold or licensed.
International conventions mean a common approach to some aspects of intellectual property law, which then results in mutual recognition of rights. Those might be international conventions in relation to particular types of rights (e.g. copyright, trade marks) or trade agreements (like the GATT or TPPA).
Even so, intellectual property rights are territorial in nature, and there can be differences between Australian and New Zealand law (both statutes and common law).
English case law can often be of assistance, although English law is now increasingly influenced by European Union considerations. US law is also very different from New Zealand law in some respects, and it should not be assumed that overseas cases will be applicable where the same issue arises in New Zealand.
The key to obtaining favourable outcomes for clients when IP disputes arise is to obtain specialist advice at an early stage. In intellectual property disputes there are often a range of possible arguments, but the skill is in identifying the strongest causes of action and arguments.