So, you are a creator and are wondering how you can go about protecting your work? Well, you have landed in the right place to gain a general yet informative introduction of how the law protects original and new creations.
To begin with, what is Intellectual Property (‘IP’)? IP refers to a thing that has been formulated from a person’s mind hence the use of the term ‘intellectual’.
‘intellectual’. The Companies and Intellectual Property Commission (CIPC) is responsible for the registration and education of Intellectual Property. The CIPC classifies Intellectual Property Rights into four types namely: Trademarks, Patents, Designs and Copyright. The distinction between these forms of IP is important because each one has its own legal character.
Trademarks
Simply put, a trademark is a symbol. It is how a business chooses to brand itself to the public with a visual logo that could be a letter, symbols, a made-up term, specified colours and generally any type of marking that is unique to the brand.Trademark registrations are valid for ten-year periods and are renewable thereafter.
The only way that your trademark registration can be registered is if it is completely distinguishable from any other brand – think the KFC logo with the founder’s face in white embellished on red packaging with black lettering – it’s unmistakable that the logo is unique to KFC in the public perception. Words can also be trademarked, such as Xbox – which is an entirely made-up combination of words to make up the original term for the products that company is in the business of producing. You cannot trademark generic words from the dictionary such as ‘home’, ‘dog’ and the like. The law governing Trademarks is the South African Trademarks Act No.194 of 1993.
Patents
Behind some of the largest companies with monopoly advantage are patent rights. Patents allow an inventor sole production right for a fixed time period – no other person or company will be able to duplicate a patent holder’s invention until that period is over – unless the inventor grants licensing rights to another. This is a highly advantageous form of Intellectual Property protection for inventions such as processes, methods, machinery, devices, new materials, chemical compounds and compositions.
The conditions for patent registration are that the invention should be new, innovative and usable in trade, industry or agriculture. Essentially, it must be original and useful. It is impossible to patent discoveries (such as century old skeletons), theories, mathematical methods or artistic works such as paintings. The governing law for patents is the South African Patents Act No. 57 of 1978.
Designs
There are two types of Designs legally recognised: aesthetic design and functional design. Aesthetic Designs are characterised by their original shape or arrangement such as the make of a jewellery piece or the shape of a perfume bottle. Functional Designs are those in which the shape and configuration are determined by the functional use – for example corkscrews are shaped in the intricate manner that they are because of their function to pull open cork bottle tops.
Registered Aesthetic Designs are protected for fifteen years, while Functional Designs are protected for only ten years. Designs can only be protected and registered if they have industrial or commercial use. The governing law for Designs is the Designs Act No. 195 of 1993.
Copyrights
Copyrights is the protection of original and self-made work ranging from literature, art, music, films, vocal recordings, television and radio broadcasts, or electronic programs. With the exception of films, all works are protected by copyright law automatically without the need for registration.
The requirements for copyright protection are that the work must be categorizable as a literary work, artwork or any of the other categories mentioned above. The work must be completely yours in the sense that you conceptualised the idea, invested resources into its making (resources such as time, knowledge). The work also must be tangible – it cannot simply be a concept or idea. For example, an idea to write a book only gains you copyright protection after the book has been drafted on paper or a computer.
No one is permitted to sample, wholly use nor distribute copyrighted work without permission. The time period that a copyright is valid for is usually fifty years but can vary depending on the type of work it is. The governing law for copyright is the Copyright Act No. 98 of 1978 (which underwent notable changes in 1992 and 2002).
Essentially, Intellectual Property Law exists to ensure that creators enjoy the fruits of their intellectual labour.
