To complete my intellectual property basic blog series here is: “Confidential Information – Ssshh It’s Secret!” Have you ever had a brilliant idea but didn’t know what to do with it? You didn’t know how to talk to people who did without letting the cat out of the bag?
Copyright does not protect ideas, concepts, information, styles or techniques. Copyright only applies when material is created. It protects the story when reduced to writing or the song when recorded or notated.
Ideas, information, techniques and other facts can be protected if they not made public and either fall under the definition of confidential information at common law, or under the definition attributed by a contract entered into to protect it from unauthorised exploitation. Such contracts may be separate Non-Disclosure Agreements (NDA) or Confidentiality Agreements or may be clauses in another contract.
The law of confidential information is not statute based like copyright law or trade mark law. Enforcement action is for breach of confidence or, if there is a contract is place, breach of contract.
Protection without a contract in place is limited to what information is considered confidential in nature. It is limited to information that:
- is not public knowledge;
- has been communicated as confidential or the circumstances in which it is obtained imply that it is confidential;
- is identifiable with sufficient specificity; and
- is at risk of actual or threatened misuse.
The information that can be protected by a contract is much broader and includes the information defined in the Contract (NDA or Confidentiality Agreement) as confidential information. The definition can be made as broad or narrow as the parties agree.
Even if you have an NDA in place it is still important to identity confidential information when it is disclosed.
Before you talk to anyone about your “brilliant idea”, have them sign an NDA to keep your idea safe.
For legal advice contact Fleur Craig of Armour-Craig Legal on (03) 5636 4986 or fleur@armourcraiglegal.com.au.