Intellectual property is an elementary branch of private law protecting the product of applying of one’s mind in creating or developing a new thing. This branch of law enjoys variety of forms whereas some of the intellectual property rights require a formal process of application, examination and registration. Registered intellectual property rights serve as a premium to acknowledge or reward innovation – providing creators and owners with the time and opportunity to exploit their creation. The focal point of this article is Copyright and Design Rights.

Copyright is an exclusive right for a limited period to an author for their original work. Copyright in South Africa is regulated by the Copyright Act and is administered by the Companies and Intellectual Property Commission in the Department of Trade and Industry. Copyright does not generally need to be registered in South Africa, unless it is cinematographic films and the Act affords protection to extensive classes and categories of work. The Works where Copyright Rights can be found includes literary works, musical works, artistic works, cinematography films, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs.

To qualify for protection under the Act, the work must be original and must be reduced to material form. Copyright as already mentioned, has a limited lifespan, depending on the type of work protected. The copyright of literacy works lasts for fifty years after the death of author while the copyright of computer programs lasts for 50 years after the first copies were made available for public access. Sound recordings copyright lasts for 50 years from the day the work was first broadcasted and it will last films 50 years from the date the film was shown.

Design as regulated by the Design Rights Act on the other hand, relates to the shape and features that appeal to the eye either required by functionality or aesthetic. The former requires that a design be new and not in a common place, necessary for functioning and the ability to be produced through industrial processes. While the latter involves new and original designs, beauty in its shape, configuration or ornamentation and should also be industrially produced. Designs must be registered (with annual renewals before expiring in the third year as from its lodged date) and the lifespan of a protected aesthetic designs lasts up to fifteen years while protection afforded to functional designs lasts a period of ten years.

A basic illustration of the two forms of intellectual property above can be exemplified through the creation of a chair for instance. The making and shaping or style used on a chair presents a relation and an overlap of design with copyright. It is logically deductive that design rights can overlap with other forms of intellectual property. The owner/proprietor of a design qualifies for both design rights as afforded by the Design Act and copyrights under the Copyright Act. This means that a design would have additional protection of copyright. You should however consult your Intellectual Property Attorney as the drawing of the chair would have copyright rights and the actual 3D embodiment is where the design rights will lie, unless it’s a custom once off Chair then there is also Copyright rights in the 3D embodiment.

It is advisable to take full advantage of the valuable protection offered for design and to even further pursue copyright in addition. Although there is a trend of design infringement intimidation through threats of instituting action prematurely, enforcing design rights requires careful consideration and calculation but one should not be reluctant to protect their designs.

– Published by the Intellectual Property Department