Intellectual property rights refer to the right to legally protect all creations or products of the human mind that can be used for commercial gain.  It is essential that legal protection be obtained when an entrepreneur or creator starts a business with an original idea or process, or a unique product.  To ensure that the entrepreneur or creator will derive full commercial benefit of it, and not an unauthorised user or infringer using the intellectual property, it must be protected by either copyrights, patents or trademarks.

 

Copyright

The principles of the Berne Copyright Convention and the TRIPS Agreement (Agreement on trade related aspects of intellectual property rights) are included in South Africa’s Copyright Act (Act 98 of 1978), and lays down the basic principles of copyright law that all member countries have to comply with.  Copyright protects the author from others making a copy, redistributing and adapting his work.   The copyright act protects literary works, musical works, artistic works, cinematographic works, sound recordings, broadcasts, published editions and computer programmes, and it is automatically obtained by law (no prior registration or any other formality is required.  Copyright owners have the exclusive constitutional right to exercise control over copying and other exploitation of the works.

 

Copyright endures for the entire lifetime of the author and for a period of 50 years after his death (after which the work is said to enter the public domain.)

 

Patents

A patent is a contract between the government and an inventor.  It grants the exclusive right to the inventor, to produce, use or sell an invention.  An invention can be a unique product, process or device, or a new technical solution to a problem.  An improvement of a product, process or device can also be registered as a patent.  The protection is granted for a limited period of 20 years, and gives the right to the owner to exclude others from making, using, or importing the invention.

According to Section 25 of the Patent Act, Act 57 of 1978, a patent may, subject to the provisions of this section, be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade and industry or agriculture.  This excludes a discovery, a scientific theory, a mathematical method, a literary, dramatic, musical or artistic or any other aesthetic creation, a scheme, rule or method for performing a mental act, playing a game or doing business, a program for a computer, and the presentation of information.

Individuals may file their own provisional patent application, but the strength and scope of protection will depend on the wording and content of the description of the invention.  For this reason, it is advisable to seek the assistance of a patent attorney.

South Africa is one of 142 countries that is a member of the Patent Co-operation Treaty (PCT). This Treaty allows an individual to file an international application as well as a national application, but the inventor should specify the countries where the patent should be registered.
A patent can last up to 20 years, provided that it is renewed annually before the expiration of the third year.

Trademarks

A trademark can be a word, symbol, design, or some combination of such, or it could be a slogan or even a particular sound, adapted and used by a company to identify its product or service, and to distinguish it from other brands and companies.

 

When a trade mark (brand name, slogan or logo) has been registered, nobody else can use this trade mark, or one that is confusingly similar. If this happens, legal action may result.
The Trade Marks Act , 1993 (Act 194 of 1993), only protects trademarks that are registered, although unregistered trademarks can be defended in terms of common law.  CIPC administers the Register of Trade Marks which is the record of all the trade marks that have been formally applied for and registered in the Republic of South Africa.  They will issue a registration certificate which has legal status, and allows the owner the exclusive right to use that mark.
A registered trade mark can be protected forever, provided it is renewed every ten (10) years upon payment of the prescribed renewal fee.