Intellectual property Business law

Patent law Patent allows protection to the inventor for a period provided disclosure of invention made Patents Act 57 of 1978 Incentive theory – patent rewards service & promotes research Disclosure theory – knowledge must be publicised to advance technology

Requirements for patent Intrinsic characteristics – an invention involves an inventive step for use in trade, industry or agriculture. See what cannot be patented Extrinsic characteristics – must be novel, involves an inventive step, must be useful (utility)

Patent protection Patent lasts for 20 years – after first three years renewal fees to be paid every three years Patent gives inventor right to the profit/advantage accruing from the invention & excludes others from enjoying any rights arising from the invention Can obtain interdict and/or damages to protect holder of the patent

Copyright Copyright in SA governed by Copyright Act 98 of 1978 Copyright arises automatically – no need to register Copyright symbol © is merely an indication or confirmation that author has asserted his copyright

What works are protected? (Sec 2) Literary works e.g. books and written composition novels. Musical works e.g. songs. Artistic works e.g. paintings and drawings. Cinematograph films e.g. movies, DVD’s Sound recordings. e.g. CD’s, mp3’s Broadcasts e.g. broadcasting of films or music. Programme-carrying signals e.g. programme-carrying signal that has been transmitted by satellite. Published editions e.g. first print by whatever process. Computer programs.

Requirements for copyright Reduced to physical or material form Originality Some evidence of skill or labour Propriety Author must be a qualified person

Who is a qualified person?

Duration of copyright The duration of copyright is relatively long and the term is different for different categories of works. For example: for literary, musical or artistic works other than photographs, the term is the life of the author plus 50 years from the end of the year in which the author dies; for cinematograph films, photographs and computer programs, the term is 50 years from the end of the year in which the work is made available to the public or is made (where no publication takes place); in the case of sound recordings and published editions, the term is 50 years from the end of the year in which the recording or edition is first published

Who owns the copyright in a work? Generally, ownership will vest in the author (Sec 21(1)(a), but If literary or artistic work made by an author employed by newspaper or magazine – copyright vests in owner of paper/magazine If work especially commissioned in return for payment – ownership vests in person commissioning If work authored in course and scope of employment – ownership vests in employer

When is copyright infringed? Copyright in a work is infringed by any person who, without the authorisation of the owner, does any of the acts reserved for the owner, eg makes a reproduction of the work. Copyright infringed by any person who, without the authority of the copyright owner, imports, sells, lets, by way of trade offers or exposes for sale or hire, or distributes for purposes of trade, an article in the Republic if he/she knew that the making of the article constituted an infringement of copyright or would have constituted an infringement if made in SA; or Copyright infringed by any person who permits a place of entertainment to be used for a public performance of a literary or musical work, where the performance constitutes an infringement of copyright, unless the person was not aware and had no reasonable grounds to suspect that the performance was an infringement section.

trademarks A trade mark is a brand name, a slogan or a logo. It identifies the services or goods of one person and distinguishes it from the goods and services of another Can be a slogan – eg: Nike – Just do it Can be a brand name – eg: Coke Can be a mark or logo or shape – eg: Shape of coke glass bottle or Nike “Swoosh” logo

Types of trade mark Collective trade mark – distinguishes goods and services of association members from non members Certification trade mark – distinguishes goods and services in respect of quality, quantity, value, purpose, origin, mode of production from goods that are not certified

Trademarks Common law protects trade marks Trade Marks Act 194 of 1993 allows for registration of trade marks which gives additional protection Duration of a trade mark is 10 years but can be renewed Certain things cannot be registered as marks (see pg 227)

Infringement of a trade mark Unauthorised use of identical or similar mark so as to deceive or cause confusion Unauthorised use of identical or similar mark that creates likelihood of deception or confusion Unauthorised use of identical or similar mark so as to take unfair advantage of the registered mark Remedies include interdict, damages & an order to remove infringing mark

Industrial design Designs Act 195 of 1993 allows for registration of a functional or aesthetic design Aesthetic design – design applied for the look (aesthetic value) – must be a new and original design – if registered, protected for 15 years Functional design – design applied for the features necessitated by the function – must be new & not commonplace – if registered, protected for 10 years Functional design would include circuit diagrams etc