Introduction

IP is the abbreviation for ‘intellectual property’ and is a term used around the world. IP can also mean ‘internet protocol’ — as in your computer’s IP address, but intellectual property is what this book is all about. IP and intellectual property are used interchangeably in this book.

IP is all around us and features in every aspect of our daily lives: at work, where we learn, when we are at home or playing. IP is property and we should understand what it involves, how to protect it, how IP rights are owned and how they work.

The four key areas of intellectual property

Symbols used in the book

Legal terminology can get a bit over the top at times. The purpose of this book is to keep it simple. Our nerdy character flags technical stuff that doesn’t affect the takeaway points of the section in question. Whenever it appears, you can skip ahead if you want.

NB is the abbreviation for the Latin words nota bene, which mean ‘take good note’. This symbol indicates an important point.

More literature about a topic is highlighted here. Do read the material referred to, particularly if you want to gain a more detailed understanding, improve your knowledge or study further.

This icon is a very flattering image of me in my younger days as an advocate. In certain cases, the icon will prompt you to consider getting expert advice. The South African Institute of Intellectual Property Law (SAIIPL) can direct you to specialist lawyers. You can get hold of SAIIPL here: www.saiipl.co.za.

A bit of information that should be useful, a tip.

A brief case study from real life.

Please note: throughout this book I have used his or her, he or she. This is for convenience. It is neither intended nor designed to invoke any particular ­gender-denominated image.

What is intellectual property?

Let’s dispel a myth about intellectual property. It is not tricky. Yes, there are concepts and some principles that must be understood. Yes, things can get complicated, say, in a court case when ‘deep’ issues are involved that need to be unpacked and examined. But it is not rocket science — that is, once the legal lingo is simplified.

The expression ‘intellectual property’ has two parts:

• property
• intellectual

Property is something that you can own — meaning that it belongs to you. The word property is associated with the word proprietor, which just means ‘owner’. Your SAMSUNG cell phone is therefore your property, likewise your NIKE sneakers, and so on.

Generally, taking someone’s property without permission is theft. Only the owner of the property can decide what is to happen to it, who can use it, and when. For example, if your friend wants to use your car, only you can decide whether to let your friend use it. You can even decide for how long, and when it must be returned. After all, it’s your property.

It is true that the laws of South Africa say that no one can take your property away from you, but there are exceptions. For example, if the government needs to build a road, it can ‘expropriate’ the land needed. If you default on tax payments, your assets could be seized by the state.

The sneakers and car in our earlier examples — and there are endless others — are all physical objects. They are ‘tangible’ — meaning you can touch them. Such physical objects are sometimes called ‘corporeal property’.

Intellectual property is a kind of property which you cannot touch. ‘Intellectual’ indicates the creative thinking that comes from your intellect or brainpower.

A poem you write, a picture you draw, a quirky GIF animation you create, or a new dress design — this is your brainpower at work. If you invent a new way of boiling water without using power or think up a new brand name, same thing — these are all creations of your intellect.

You can see a logo, hear a song, watch a movie, and read a poem, but (whilst they might touch you) you cannot touch them. These things are not corporeal, they are incorporeal. Intellectual property is sometimes referred to as ‘incorporeal property’.

Here you have the picture: IP is something you create with your brainpower, and it is treated like all other kinds of property — it is in the same ballpark as your sneakers. You can control its use in just the same way as you can control the use and enjoyment of your things.

The default position of the law in South Africa (and most other countries) is that you own what you create.

Where did IP originate?

Today, the Department of Trade, Industry and Competition (dtic) plays an important role in protecting intellectual property, which will be described later on. The idea of government systems that regulate the ownership of IP goes back quite a long time, starting with the Industrial Revolution in Europe and the United Kingdom.

The Industrial Revolution, also called the First Industrial Revolution, took place from about 1760 to 1840. Before, most things were crafted by hand. Blacksmiths made swords, tools, knives and cooking pots in their forges and foundries; goldsmiths created jewellery; potters fashioned crockery; leatherworkers made clothes and saddlery, and weavers could make cloth. Glassmakers were common. Farmers used tools and implements for some processes, but harvested their produce by hand and took their goods to market by horse-drawn cart.

Trade marks originated as symbols of identification. In the manufacturing guilds of the Middle Ages, smiths and other artisans had to mark their products so that inferior work could be traced (and the guilty party punished) and also to detect ‘foreign’ goods in areas where the particular guild enjoyed a monopoly. This type of mark was, truly, a badge of origin.

Moreover, marks were usually affixed to goods undergoing journeys, to identify the property if the vessel was shipwrecked or attacked by pirates, or if it had been handled by illiterate shipping clerks. Such ‘proprietary’ marks did not indicate where a product had been made or by whom, but rather identified the merchant to whom the goods belonged.

Along came the First Industrial Revolution, and machines were invented that used steam power. They were put to use in a variety of ways, from mechanising the manufacture of textiles to a means of transport to generating electricity. Mass-production and factories replaced cottage industries. In the late 18th century, the Second Industrial Revolution began and the wheels of industry started turning even faster. In short, factories came to replace crafters’ workshops as the source of manufacture. The Industrial Revolution with all its machinery brought about significant changes for creatives, from village crafters to court musicians.

Johannes Gutenberg invented the printing press over two centuries before, but only when the presses became steam-powered could printing take place on a large scale. Before, reproducing written works such as sheet music and the Bible was done slowly and mostly on a relatively small scale. When the process became mechanised, reproduction became a lot easier.

When factories began to produce things in quantities, commerce and trade likewise took off. Shops began selling products from different factories and, all at once, buyers could pick and choose from more items than those produced by local craftsmen. As a result, it became desirable for the various manufacturers to put a mark on their products to identify the source of manufacture. This was the start of something that we take for granted every day: brands.

Necessity is the mother of invention, and so, as education standards rose, more people than ever before started inventing things to solve problems or fulfil a need, from mechanised equipment to medicines. It takes time and effort to come up with an invention that works — and is useful. Today’s notion of R&D (research and development) has been around for centuries. Inventors have to go through many stages of trial and error in testing, redesigning and recreating — and this all costs money.

Over time, there began a general movement towards the idea of protecting these works of the intellect. After all, it takes a lot of time to write a book or paint a beautiful picture, and a lot of thought (intellectual effort) goes into the process. When Thomas Edison invented the light bulb, he tested thousands of different materials just for the filament (the part which glows). Creators began to realise they needed ‘protection’, because their efforts, skill and labour were wasted when it was so easy for others simply to copy what they made without paying for it — or, even, sell the copies themselves. Inventors spent lots of money producing machinery and equipment that benefitted society, but how were they going to be rewarded for their skill and hard work, not to mention being compensated for the financial cost to them?

Governments began to realise that these creations of the intellect deserved some form of protection. They therefore put laws in place, which effectively granted a type of monopoly to the person who had invested time, skill and effort (and even money) in creating something that would benefit society at large. This ‘monopoly’ meant that only the creator could commercialise or exploit the creation — in other words, make money from it. It became his ­property.

The statutes of a country

How do laws work — and why? First, think of soccer, or netball, or boxing, or cricket. These games must be played according to rules so that they function optimally.

The statutes of a country are very similar. They are the rules set up by a government to control and regulate how society and commercial activities are to work. Statutes are the laws of a country, and there are lots of different kinds — they regulate just about anything from companies to banks to getting married and divorced, to crime and selling medicine.

The government of each country is responsible for ruling that country and makes the laws that it wants for governing its people. Thus, France has its own laws, and these are different from Japan’s, for example. And Canada’s laws differ from South African laws.

In a democratic country, the political party which gets the majority of votes comes into power — because that signifies that most people want it to be the ruling party. A democracy does not necessarily mean that the party in power makes the laws. South Africa is ruled under the laws which are made by Parliament, which is comprised of members in ratios proportionate to the results of the democratic election. However, Parliament is an institution which is timeless and stays in place whatever political party wins the election. This explains why we still have statutes which were made by Parliament many years ago — it is only if the government of the day decides to cancel a particular law that it will be ‘repealed’ or amended in some way.

As an example, let’s consider a law to govern healthcare. The government departments and other roleplayers involved in healthcare may realise that there is a need for such a law. To begin with, a government institution called the Law Reform Commission gets involved. Its function is to conduct research, make recommendations and prepare a document reflecting what the particular law will say.

The provisional statute which has been prepared by the Law Reform Commission will be presented to Parliament in the form of a ‘bill’. The members of Parliament then vote as to whether the bill should become enforceable law. If they vote in favour of the bill, it then becomes a statute — as it is said, there has been an ‘Act’ of Parliament.

As these statutes have been enacted by a democratically-elected Parliament, it follows that they are supposed to represent the will of the people. In a democratic society it is necessary that the laws of Parliament are effective. This means that there must be measures in place to ensure that the laws can be enforced — in other words, to make sure that they are respected by everyone.

Applying the law

It is here that the courts come into the picture. There are Magistrates’ Courts, which are manned by magistrates, and there are High Courts which are presided over by judges. These are people who have a high level of legal training and experience and are employed by the Department of Justice. Magistrates and judges are given authority by the Constitution (which is the highest of all statutes) to decide disputes and to issue orders. These orders must be obeyed.

If anyone refuses to obey a court order, this is called contempt of court and the offender can be sent to prison.

The police monitor the laws which deal with criminal behaviour and see to it that people who break the law are prosecuted and punished by the courts. When it comes to behaviour which is not criminal, but still in breach of the law, this concerns civil law and has nothing to do with the police. Civil law applies to the scenario where ordinary citizens can take others to court — to sue them, is another way of putting it.

When we talk about ‘litigation’ we mean a civil court case. The claimant is called the plaintiff, and can also (depending on the type of civil proceedings) be referred to as the applicant. The person who is being sued is the defendant or respondent. Together, the plaintiff and defendant are parties to the litigation.

Example: Let’s say there is a law which dictates that someone who crashes into your car must pay for the damage caused. If that person does not pay, no crime has been committed — but this particular law gives you a remedy. The person owes you the money, and if payment is not forthcoming, you can sue. This means you take the person to court; here, you are the plaintiff. If the judge agrees with your case, that person (the defendant) will be ordered to pay you the money. If the defendant still refuses to do so, he or she will be in breach (in contempt) of the court order.

This is how the legal system is made effective. Just as soccer and other sports have rules, the legal system’s purpose is to make it possible for us to live in a society that works — for the benefit and well-being of us all, according to the laws passed by Parliament.

Our intellectual property laws work in the same way. Parliament has enacted various statutes to govern and regulate all things to do with intellectual property. This includes a system for recording the ownership of the intellectual property in a government register, and the procedures to enforce your rights as owner if someone uses your IP without your permission.

What are ‘rights’?

We have read up on (a) intellectual (b) property, but because we also refer to intellectual property ‘rights’, it is important that we must understand what this means.

A right is a legally enforceable entitlement to have, or to do something.

First, let’s briefly consider the Constitution. It is an Act of Parliament and the supreme law of the land. All laws must comply with the promises and premises of the Constitution; it is said that when laws are interpreted and applied by the courts, it must be done through the ‘lens’ of the Constitution.

You can read the Constitution in any one of the eleven official languages here: www.myconstitution.co.za.

The Bill of Rights is part of the Constitution and states what we are entitled to as citizens of this country, and all laws must respect these rights. Parliament has accordingly affirmed that the citizens of South Africa must have education, must have water, must be able to choose their own career, must have the freedom of expression, must be allowed to vote — and so on. The fact that Parliament (by enacting the Constitution) has said that we are entitled to these things means we have a ‘right’ to them. In short, we all have a right to education, a right to vote, and so on. No one can take these rights away from us.

It is the same when you own property — whether it is corporeal property or intellectual property. You have a right to that property. It is yours, and no one can take it away from you.

Right! We are now ready to look more closely at the various kinds of intellectual property rights.