PROTECTING YOUR IDEA

One of the questions most frequently asked of intellectual property attorneys is “how do I copyright my idea?”

The first answer to this question, which often leaves the person asking feeling a little exasperated, is that there is no copyright in ideas per se.

While your idea is just that, an idea, simply a thought you are holding in your mind, you cannot claim rights in it. If you share your idea with someone, unless there are confidentiality or non-disclosure agreements in place, there is nothing stopping them, at this point, from copying it.

In order for copyright to subsist, your idea needs to be reduced to a material form. It needs to evolve from the thought in your mind to something with substance, whether written down, recorded, illustrated or otherwise. Your idea must be embodied in some way, rather than remaining an abstract thought in your mind.

Once you have reduced your idea to a material form, in order for copyright to subsist in it, it needs to be a “work” recognised in terms of the Copyright Act of 1978. Examples of works are literary, musical and artistic works, sound recordings, cinematograph films and computer programs. Most created works will meet the requirements of at least one, and often more than one, of the works defined in the Copyright Act.

Your work must also be “original”. This does not mean that it is required to be entirely novel in order to attract copyright protection but rather that it should not be trite, trivial or commonplace and, of course, should not be a copy of another’s work but rather the product of your individual effort.

Once a work has been created, the enquiry turns to who owns the copyright subsisting in it. Generally, the author or creator of the work owns the resultant copyright, but there are a few exceptions to this rule. For example, where an author is employed by a newspaper, magazine or similar periodical, the copyright in works created by him or her in the course of his or her employ for purposes of publication in the newspaper, magazine or periodical will be owned by his or her employer.

Where a person commissions the creation of certain works, such as the taking of a photograph, making of a gravure, sound recording or cinematograph film, and pays or agrees to pay for the work, the person commissioning the work owns the resultant copyright.

Where a work is created in the course and scope of one’s employment, the employer, and not the author, will own the relevant copyright.

These exceptions can be altered by agreement between the parties and this is something to be borne in mind by persons wishing to retain the copyright in works created by them in situations such as these.

Finally, if on considering all of the above you are happy to find you are a copyright owner, the good news is that your creativity is rewarded by way of a very generous copyright term of, in most cases, the lifetime of the author plus fifty years. During the time that your copyright subsists, assuming that copying has occurred, you are able to restrain third parties from making unauthorised reproductions or adaptations of your work and you have the exclusive right to exploit your work for your benefit.

Since copyright is not a right that can, in South Africa, be registered (with the exception of cinematograph films), it is not necessary or indeed possible to “register your copyright”. As soon as the copyright work is created, and assuming the requirements discussed above are met, you immediately own a right that you can enforce. It is, however, important to remember to keep records showing the steps taken in creating the work, in case it becomes necessary to prove that copyright subsists in your work in future.

By Nicole Smalberger | Senior Associate

NICOLE SMALBERGER

Senior Associate

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