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Intellectual property and data protection

The most appropriate forms of intellectual property (IP) protection in Australia for fintech business models and related software are patent and copyright.

Patent protection is available for certain types of innovations and inventions in Australia. A standard patent provides long-term protection and control over an invention, lasting for up to 20 years from the filing date. The requirements for a standard patent include the invention being new, involving an inventive step and being able to be made or used in an industry. An innovation patent is targeted at inventions that take an innovative step and have short market lives, lasting up to eight years.

Business schemes and plans are not patentable, nor are abstract business models that happen to involve a new type of corporate structuring to bring about a certain result. However, there are some business methods that are patentable. In order to be patentable, the business method must directly involve a physical device that is used to bring about a useful product. If the method involves the application of technology, the technological aspect must be substantial and a useful product. Related software may only receive patent protection if it meets the requirement for a manner of manufacture, and is an industrially applicable solution to a technological problem.

Fintech businesses may attain copyright protection for the literacy work in source code, executable code and data sets of new software. This usually protects the exact code that causes a computer to bring about a certain result; however, whether this can be extended to the look and feel of the software is debatable.

Broadly, the person or business that has developed intellectual property generally owns that intellectual property, subject to any existing or competing rights. In an employment context, the employer generally owns new intellectual property rights developed in the course of employment, unless the terms of employment contain an effective assignment of such rights to the employee. Contractors, advisers and consultants generally own new intellectual property rights developed in the course of engagement, unless the terms of engagement contain an effective assignment of such rights to the company by whom they are engaged.

Under the Copyright Act 1968 (Cth), creators of copyright works such as literacy works (including software) also retain moral rights in the work (for example, the right to be named as author). Moral rights cannot be assigned but creators can consent to actions that would otherwise amount to an infringement.

i Client data

The Privacy Act regulates the handling of personal information by Federal government agencies and private sector organisations with an aggregate group revenue of at least A$3 million. The Privacy Act includes 13 APPs, which create obligations on the collection, use, disclosure, retention and destruction of personal information.

In 2018, the Australian Government announced that the CDR framework will first be applied to the banking sector under the open banking regime, by which consumers can exercise greater access and control over their banking data. These sharing arrangements are intended to facilitate easier swapping of service providers, enhancement of customer experience based on personal and aggregated data, and more personalised offerings.

Additionally, the European Union (EU) General Data Protection Regulation has extremely broad extraterritorial reach and may significantly impact the data handling practices of Australian businesses offering goods and services in the EU.