Insights On Intellectual Property For SA Small Businesses

Q&A With Tumelo Mashabela, Managing Director at Tshaya Mashabela Attorneys

1. Can you briefly explain Intellectual Property to our readers?

IP is a broad umbrella term for intangible assets (non-physical assets of human creativity with commercial value) owned and legally protected by a company or individual from outside use or implementation without consent.

2. Intellectual Property can consist of many types of intangible assets, what are the primary types of IP that can be legally protected?

Patents – these are property rights for an invention that the government grants in exchange of an exclusive disclosure of the invention on a patent specification. A patent gives the inventor exclusive rights to their idea, which could be a new process, system, or product. For example, in 1980, Steve Jobs filed a patent for the personal computer.

• Copyrights – providing authors and creators of original material the exclusive right to use, copy, or duplicate their material.

• Trade marks – a symbol, phrase, or logo that is recognisable and represents a product that legally separates it from other products. For example, the Coca-Cola company trademarked the logo and brand name of “Coca-Cola”.

• Trade Secrets – a company’s process or practice that is not public information. Companies must actively protect trade secrets, which is why some employers require employees to sign non-disclosure agreements (NDAs).

3. Could you tell us more about the importance of IP law in connection with the creative industry?

The importance of IP law in the creative industry cannot be understated as it determines the ownership of creative work, allows a creator to decide as to who can use that work and enables the creator to be able to obtain financial benefits from their creative work.

IP law enables a creator to protect his/her innovative creation through various IP rights, which allows the creator to have exclusive rights to their innovative creation. For example, an author can obtain the protection of their books through copyright and a fashion designer can protect their new patterns of garments through registered design. The brands under which these creatives differentiate their goods and/or services for other creatives can be protected by a trademark.

In addition, IP rights encourage creators to be creative by providing them with the protection of their rights which can assist them to generate income from their talents through transactions such as licensing and selling (assignment). For example, a creator can license their IP rights in exchange of a royalty.

Since Covid-19, the creative economy has been in the spotlight where not only mainstream creatives but also people, in general, tapped into their creative abilities and were putting their work on public platforms to be consumed by everyone in South Africa and internationally. It is thus very important for such creatives to understand their IP rights associated with each of their work and conclude transactions that will be beneficial to them.

4. How can Intellectual Property Protection create opportunities for SMEs growth in South Africa?

IP sets small businesses apart from their competitors and is essential in promoting economic growth through innovation, creative expression, and industrial development, as highlighted by South Africa’s Intellectual Property Policy.

Unlike in the past, when businesses would differentiate themselves from competitors by having more capital or owning a manufacturing plant, the business world now operates in the knowledge economy. In this environment, IP allowed organisations like Apple, whose humble beginnings stem from a garage, to set themselves apart from other PC manufacturers and, later, even mobile device manufacturers.

Those rights are still highly beneficial for South African SMEs because competitors who want to use their solution will need to compensate them either through payment of royalties or a lump-sum.

For example, suppose a small manufacturer with a patent can no longer produce its products due to a lack of funding. However, because of its patent, that manufacturer can conclude a licence agreement with another individual or organisation and let that person or company manufacture its product while getting royalties. Not only that, but a business can also sell its IP asset and receive a lump sum of money for it.

5. It was reported recently that organisers of the California music festival Coachella are suing Ghana’s Afrochella over copyright infringement. Any tips you can share that can help businesses in South Africa to avoid copyright infringement?

Familiarize yourself with the Copyright Act and its relevant provisions.

• To be on the safe side of the law, it is always best to assume that every work is protected by copyright.

• Take the time to read terms of a license agreement before using any piece of work. Even if the licence agreement provides that the piece of work is “free”, understand what the term “free” actually means.

• Know the exception of fair dealing. In the Copyright Act, the fair dealing exception allows a user to copy other people’s copyright material for their own study, research, or private use without seeking permission from the copyright owner. This is only permitted if what you do with the work is fair.