“I was interested to read about the recent “please call me” case where it was found in favour of the inventor Mr Nksana Makate against Vodacom. It got me wondering as to how I can protect my own ‘big’ idea and what exactly can be protected by law?”
Big ideas are what define us as a human race. This does not however mean that all ideas are worthy of protection under the law. The law has established specific types of protection for ideas and has its own area of the law, appropriately termed intellectual property law, which deals with legal protection for the different forms of ideas. Trade marks, patents, copyrights and design rights are all examples of intellectual property rights which can be used to establish ownership and offer protection for inventions and ideas.
A primary reason for protecting intellectual property is to allow the creator and owner thereof to benefit from the idea or invention. Ideas and inventions often require substantial financial investment in order to be made commercially viable and protection is necessary to ensure that the ‘idea’ is not stolen by someone else after such a hefty investment was made by the creator and owner. But like you, most people are unsure as to which types of intellectual property rights exist and how you can register and enforce your rights.
The first step is therefore to be aware of the different types of intellectual property in order to identify within which class your invention or idea will fall and thereby determine what your rights as a potential intellectual property creator and owner will be in relation to each. For example:
Copyright law protects the expression of ideas apart from the physical form of the work in which they are expressed. The Copyright Act extends copyright protection to every original work such as a literary work, musical work, artistic work, sound recording, cinematograph film and broadcast etc. Works can however only enjoy copyright protection if they can be classified into one or more of the categories as listed in the Copyright Act and if they fulfil the inherent and formal requirements for protection as specified by the Copyright Act.
A patent on the other hand relates to an invention that has been created or designed and that is new, results from an inventive activity and which is capable of being used or applied in trade, industry or agriculture. The Patents Act specifically excludes from patent protection, invention categories such as scientific theories, mathematical methods or methods of doing business, amongst others. This however, does not exclude protection of such ideas or inventions by other means and methods. Trade secrets and business ideas, for example, form the basis of the creation of the goodwill in a business and although not patentable, can be protected by other legal means.
Once you have formulated an idea or created an invention it would be advisable to obtain advice from an intellectual property specialist to assist you to accurately identify what type of intellectual property your idea or invention will fall under, what your rights are in relation to it and whether or not it will have any statutory protection. You should also obtain advice on alternative protective measures which may be available to you, such as avoiding publication of your idea or invention and having appropriate non-disclosure agreements in place before sharing your idea or invention with potential investors or other third parties.
This article first appeared on the Phatshoane Henney Attorneys July 2016 newsletter.