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Definitions for (IP) Intellectual Property

What is Intellectual Property?

Intellectual property is intangible objects which arise as a result of mental labour, human activity and creativity. It therefore relates to creations or expressions of the mind. In practice, it can also be referred to as the incorporeal assets of a business.

Some intellectual property aspects of a business may become very valuable. In this regard, in some sectors, in particularly the Information Technology sector, the value of the intellectual property of the business exceeds the value of other assets of the business, for example, its physical properties. Many businesses, unfortunately, are not aware of their intellectual property, or do not properly manage, protect or exploit their intellectual property rights.

It is important to protect intellectual property, as it may constitute corporate assets which can be commercially exploited. Furthermore, the failure to properly protect intellectual property when it arise, may decrease the monetary value of a business or product; and may weaken the owner’s position in the event of a dispute with a third party; and/or may demand costly formal legal actions later to obtain protection.

Generally, it is possible to distinguish between two categories of intellectual property rights, namely statutory rights and common law rights.

Statutory intellectual property rights are dictated by statutes and grant monopolistic rights for a limited duration. These rights include trade marks, copyright, patents, designs and plant breeder rights.

These rights are governed by the following main statutes:

  • Patents Act 57 of 1978
  • Trade Marks Act 194 of 1993 Designs Act 195 of 1993
  • Copyright Act 98 of 1978
  • Designs Act 195 of 1993
  • Registration of Copyright in Cinematograph Films Act 62 of 1977
  • Plant Breeder’s Rights Act 15 of 1976T

There are various other forms of intellectual property rights which are not dictated by statutes. These rights are generally governed by common law, including the law of delict and contract law. A number of judicial decisions led to the recognition of these rights. Examples of these other forms of intellectual property include know-how, confidential information, trade secrets and the right to a good name or reputation.In practice, it is important to distinguish between statutory and common law rights, particularly in the event of a dispute with a third party, as different remedies apply. In this regard, especially in the case of trade marks, it is generally easier to rely on statutory rights in the event of a conflict against a third party. For this reason, although common law rights may vest in a name of a business, statutory protection should also be applied for in terms of the Trade Marks Act to strengthen the proprietor’s rights and increase the value of the mark.

For ease of reference, brief definitions of the main forms of intellectual property rights, namely patents, trade marks, designs and copyright are set out below:

What is a patent?

The Patents Act defines a “patent” to refer to a certificate issued by the Patents Office stating that a patent for an invention has been granted in the Republic of South Africa. An “invention” means an invention for which a patent may be granted under Section 25 of the Patent Act.

Section 25 inter alia provides that a patent may be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade or industry or agriculture. Section 25 furthermore inter alia expressly prohibits patent registrations for a discovery; a scientific theory; a mathematical method; a literary, dramatic, musical or artistic work 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; or the presentation of information.

However, mostly due to international developments, despite the fact that “a program for a computer” appears in this list, there may be circumstances under which a computer program may be subject to patent protection. It is therefore best to consult your patent attorney before disclosing your invention of computer program to the public or third parties.

What is a trade mark?

The Trade Marks Act defines a “mark” 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 “trade mark” means a mark used or proposed to be used by a person in relation to goods or services, for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used, from the same kind of goods or services connected in the course of trade with any other person. The Act furthermore provides for the descriptions and registration of collective and certification trade marks.

A collective trade mark is a mark capable of distinguishing, in the course of trade, goods or services of persons who are members of any association from goods or services of persons who are not members thereof. A collective trade mark may be registered as a collective trade mark in respect of such first-mentioned goods or services in the name of such association as the proprietor thereof. Geographical names or other indications of geographical origin may be registered as collective trade marks.

A certification trade mark is a mark capable of distinguishing, in the course of trade, goods or services certified by any person in respect of kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of the goods or services, or the mode or time of production of the goods or of rendering of the services, as the case may be, from goods or services not so certified, shall, on application in the prescribed manner, be registrable as a certification trade mark in respect of such first mentioned goods or services, in the name, as proprietor thereof, of that person, provided that a mark may not be so registered in the name of a person who carries on a trade in the goods or services in respect of which registration is sought.

What is a design?

The Designs Act distinguishes between aesthetic and functional designs.

An “aesthetic design” means any design applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof. Examples of aesthetic designs include an article of jewelry or pattern on fabrics.

A “functional design” means any design applied to any article, whether for the pattern or the shape or the configuration thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied, is to perform, and includes an integrated circuit topography, a mask work and a series of mask works. Examples of functional designs include the shape of a toothbrush or kettle.

What is copyright?

The Copyright Act does not include a definition for the term “copyright”. Except for cinematograph films, it is currently not possible to obtain registration for items which fall within the scope of the Copyright Act in South Africa.

Copyright subsists automatically, provided that certain requirements are met. These requirements include that the object must be reduced to material form and a “work” as defined in the Act. The work must furthermore be original in the sense that the creator applied skills, time and efforts to create the object.

Works covered by the Copyright Act include literary works; musical works; artistic works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions and computer programs. The Act includes definitions for each of these works.

In practice, copyright can broadly be described as a person’s exclusive right to do or to authorise the doing of certain acts in relation to specific works which are subject to copyright protection and which are owned by that person. For example, copyright relating to a literary work, such as a textbook, relates to the copyright owner’s exclusive right to do or to authorise the doing of the following acts in South Africa:

(a) reproducing the work in any manner or form;
(b) publishing the work if it was hitherto unpublished;
(c) performing the work in public;
(d) broadcasting the work;
(e) causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the
     work, and is operated by the original broadcaster;
(f) making an adaptation of the work;
(g) doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a)
     to (e) inclusive.

Considering the aforementioned, a single object such as a music CD, may incorporate different types of works which may be eligible for copyright protection. Such works may include literary works, musical works and sound recordings. Such different works may be created and/or owned by different persons.

Need further advice?
The above comments serve as a short introduction to the most important definitions of intellectual property. If you require assistance with or advice on the categorising of your intellectual property, you are welcome to contact us

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