What is intellectual property and how does the law safeguard it?
Intellectual property is not property at all in the traditional sense. The terminology is interesting because we tend to think of property as tangible and solid: the building we live in is a property and our personal property refers to our belongings – very real items that we use, enjoy, and occasionally lose. Intellectual property, by contrast, is entirely intangible – that is, it can’t be touched. This is the definition of intellectual property: “intangible creations of the human intellect”. However, intellectual property laws only protect creations that are tangible. This is not as contradictory as it sounds. In other words, ideas must be documented or executed to be protected. Undocumented and/or unexecuted ideas or thoughts are not covered. Furthermore, there are actually no laws protecting intellectual property as such. Rather, the law recognises several types of intellectual property (IP). In this article we’ll look at them in turn, as well as the legal framework that applies to each.
History of intellectual property
Intellectual property sounds modern, but the term has been around for 150 years. It emerged in the US in the 1870s in the context of controversy over the patent system. In an effort to group patent law with more established and reputable copyright law (which had been around since the early 1700s), lawyers began to use the term “intellectual property”. The choice of the word “property” was deliberate, to equate intangible ideas with tangible property.
Types of IP
Today, four types of IP are recognised, here in South Africa and globally. In addition to patents and copyright already mentioned, there are trademarks and designs. There is a fifth type of IP that is not officially recognised in legislation: trade secrets.
Trademarks
The Trademarks Act of 1993 defines a trademark as “Any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned”. A trademark is used to identify goods or services and to distinguish the offering of one provider from another. For example, McDonald’s and Burger King both sell fast food burgers and fries. The basic foodstuffs are the same. But you know instantly which outlet you are visiting – and exactly what it offers – by the trademark golden arches or orange burger bun surrounding red words. Any other burger restaurant attempting to use a similar logo would be guilty of infringement of trademark.
Patents
According to the World Intellectual Property Organisation, “a patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.” A patent gives the inventor the right to exclude others from making, using, or commercialising the patented invention for the allocated term. The patent holder can also legally challenge anyone who attempts to use the invention. In the fast-moving world of modern technology, particularly medical technology, competing companies sometimes develop very similar devices concurrently. A patent battle then ensues. For example, currently there are two European manufacturers of continuous glucose monitoring devices engaged in an ongoing patent infringement suit.
Copyright
Copyright as a concept has been around over 300 years, as mentioned above. Copyright is the protection of ideas, and is generally associated with creative output, including literary works, musical works, artistic works, sound recordings, cinematograph films, computer programs, broadcasts, and a few other categories of creative expression. Unlike other forms of IP, copyright exists by virtue of a work having been created, provided it is a class of work recognised by the Copyright Act of 1978 (film is the exception). A work doesn’t need to be published or publicly available to be subject to copyright, but it must be in a tangible form and must be original. An author’s copyright lasts a long time…but not forever, and the duration differs from jurisdiction to jurisdiction. In South Africa copyright expires 50 years after the work was created or 50 years after the author dies. In the UK and US it is 70 years. After that point the work is in the public domain. This is why a musician can “sample” bars from Beethoven in a new composition without seeking permission from the composer’s estate.
Designs
A design is considered intellectual property but is not the same as a patent. In South Africa, design protection is based on the appearance of an item rather than the underlying invention. A design is the creation of a pattern, shape, configuration and/or ornamentation which gives rise to features of the article. Furthermore, the Designs Act of 1993 distinguishes between two types of designs:
- Aesthetic design – a design that has a unique shape, configuration or ornamentation that is visually appealing.
- Functional design – a shape or configuration that is necessitated by the function the article performs.
Trade secrets
Trade secrets include formulas, practices, processes, designs, instruments, patterns or compilations of information that have economic value to an organisation because they are, as the name suggests, secret! For example, the recipe for Coca-Cola is supposedly kept in a purpose-built vault within the company’s headquarters in Atlanta, Georgia. But it is not patented or subject to copyright. This is why companies often insist on non-disclosure agreements with suppliers and confidentiality clauses in employment contracts – to prevent leaking the information that gives them competitive advantage.
How to protect your IP
With the exception of trade secrets, which you need to protect through self-regulation, your IP can be protected in South African law. Apart from copyright, your creations are not automatically protected. There are different registration processes, depending on the type of IP.
Trademarks
Before you register a trademark, it’s wise to conduct a search to make sure your proposed trademark is registrable. You need to know if the trademark has already been registered in the class of goods or services you are engaged in. It’s best to enlist the services of an attorney to help you with this. Once you are satisfied there are no matches, you apply for trademark registration with the Companies and Intellectual Property Commission (CIPC), part of the Department of Trade and Industry (DTI). The process is lengthy, taking between 24 and 36 months, as there are various stages to it, including advertising in the CIPC’s patent journal to allow objections to be raised. Once your trademark is registered, you must renew it every 10 years.
Patents
Patents are also granted by the CIPC. A patent protects your invention from being used, sold, or manufactured without your permission for a specific period. Patents are granted for any invention which involves an inventive step and is capable of being used or applied in trade, industry or agriculture.
Copyright
Copyright protection is automatic for original creative works, other than films. You can create your own copyright by putting the words “copyright” or “copyright reserved”, or the copyright symbol ©, followed by your name and the year, on your original work. You have probably seen this frequently on websites. You may have also seen the words “all rights reserved”. However, if you want to claim a copyright to a film, DVD or video, you must apply to the Registrar of Copyright. You can register copyright to a book, work of art or music with the CIPC, although it is not essential, as it may give you added peace of mind and legal benefits in case of infringement disputes.
Designs
Designs should be registered with the CIPC to ensure you have exclusive rights to your design and others can’t manufacture, import or use it. An aesthetic design is legally protected for 15 years, and a functional design for 10 years, but you must renew the registration annually before the expiry of the third year from the date you lodge your application.
Trade secrets
Your trade secrets are not protected by legislation and are only as safe as your organisation’s ability to keep the information confidential. Raise awareness among your employees and business partners (suppliers and key customers, for example) about the importance of safeguarding company IP.
Monitor the market
Once you have a legal framework in place, it’s up to you to monitor the market for potential infringements of your IP. Holding a trademark or patent won’t stop someone else from copying stealing your IP unless you challenge any unauthorised use of your idea or image. Trademark and patent infringements are often high profile. A recent case was brought by The 3M company against a Chinese material company using the name 3N. The court ruled that 3N had acquired clients and market share via the similarity of brand image, despite selling different products, and this constituted infringement.
Copyright breaches are common, but are not always publicised. Using a photo on a website without consent of the image owner is an example of copyright infringement, as is downloading music or video content illegally or making a video recording of a motion picture in the cinema. This often goes undetected and therefore is rarely prosecuted. However, singer/songwriter Ed Sheeran recently hit the news when he won a copyright infringement case brought by the heirs of Ed Townsend, who wrote “Let’s Get It On” for Marvin Gaye. Sheeran was accused of copying certain musical elements in the song, but the court ruled in his favour.
Go global
If your business is on the verge of global expansion, you may want to consider international IP protection mechanisms. Trademarks can be registered worldwide through the Madrid System, which allows you to pay one fee for a single international trademark application. The Patent Cooperation Treaty allows for international patent protection via one application.
Legal advice is essential
It’s important to consult an experienced attorney when you want to protect your IP. We can help you navigate the legal requirements and manage the CIPC registration process. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to arrange a preliminary discussion.
Further reading:
SD Law
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.