When you think of something original and make a product based on that idea, such as a song, then you essentially have a claim to that product as if it were your own property. Intellectual property (IP) refers to something that is a product of someone’s mind. According to the law people have the right to own their own creations. This includes ideas, inventions, written works, computer programmes and the names and logos of companies or consumer items. IP rights are important as it protects people’s creations and motivates people, companies and industries to be more innovative with their ideas. Transgressing a person’s IP rights can have serious consequences. In the case of Vodacom’s ‘Please Call Me’ service, for example, a share of billions of Rands had to be paid out to the man who came up with the original idea, Kenneth Nkosana Makate.
There are four types of IP in South Africa. They include trademarks, copyright, patents and designs.
- Patents protect inventions.
- Trade marks protect a unique name or symbol that is used to identify a business or product.
- Copyright protects the original works of authors, composers, artists, musicians, film-makers and software developers.
- Designs can be registered to protect the visual and aesthetic appearance of a product or a functional aspect of a product, such as a kitchen appliance.
The value of having IP rights
Having IP rights have many benefits for a company or individual who has created something. It’s firstly a great reward for the creator behind the product because it means others can’t profit from their ideas without their consent. It also protects their ideas and creations from being stolen or reproduced by someone else. This encourages innovation because people or companies would have to come up with their own ideas instead of stealing other people’s ideas. One of the biggest benefits is that the owner of the IP rights can make a lot of money if his/her product is extremely valuable or popular. An author of a book, for example, can make a good amount of money if their book is popular and could go on to write more books under the same title.
Vodacom and Mr Makate
In April 2016, the Constitutional Court ruled that Vodacom must compensate inventor of the ‘Please Call Me’ SMS product, Kenneth Nkosana Makate. Makate came up with the idea of the ‘Please Call Me’ after he wanted an easier way of communicating with his then girlfriend and now wife. After conceiving the idea in 2000, Makate approached Vodacom’s then director and head of product development, Philip Geissler. Geissler and Makate made an oral agreement that the product would be tried out and, if commercially viable, a share of the proceeds would be paid to Makate. Since the ‘Please Call Me’ product was introduced in 2001, it has made billions in revenue for Vodacom. However, Makate was never paid a share of the profit as promised and brought the case to a court in 2008. The Constitutional Court’s decision means that Makate will see a share of the billions of Rands Vodacom made from his initial idea. The court ruling shows that a person’s idea is not something that others can casually steal and profit from.
Having exclusive rights to a product or creation doesn’t necessarily last forever. This differs for the type of IP rights you have. A patent lasts for 20 years, but designs only last for between 10 or 15 years. Copyright is simpler and lasts for as long as 50 after the death of the author. So someone who holds copyright over a piece of original work, such as a novel, keeps it with no renewal fees. Trade marks can remain indefinitely, as long as renewal fees are paid every decade.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)