There are two basic forms of the law: statutory law and non-statutory law, or common law. Statutory law is the formal written law of a country, written by that country’s legislative authority, and is ratified by the highest executive in the government, before being published.
Typically, statutes command, prohibit, or declare policy. Statutes are sometimes referred to as legislation or "black letter” law. In non-statutory forms of the law, or common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law.
Non-statutory law forms a major part of the legal systems of those countries of the world that have at one time been territories or colonies of the British Empire (with the exception of Malta, Scotland and Quebec). Common law is notable for its inclusion of extensive non-statutory law that reflects precedent derived from centuries of judgments by working jurists.
In South Africa most Intellectual Property protection legislation is
based upon statutory laws, the main Acts of Parliament being the Patents
Act of 1978, The Trade Marks Act of 1993 and Trade Marks Regulations of
1995, and the Designs Act of 1993.
There is also an Act and Regulations
governing Copyright. Patents, Trade Marks and Designs are registered under
these Acts and can be defended under their legislation. Trade Marks do
not have to be registered, but if that is the case then they can only
be defended under non-statutory forms of the Law, or Common Law.
Interpretation
of the rights to Trade Marks, for example, is looked upon in an entirely
different way in Britain and the United States than it is in South Africa.
Other types of Intellectual Property protection plans that are governed
by non-statutory forms of the Law are Know-how, Show-how and Trade secrets,
which can only be defended in common law.
The registration of Intellectual Property in South Africa is carried
out by the Companies and Intellectual Property Protection Registration
Office (CIPRO) in Pretoria. The Laws regarding Intellectual Property Protection
are complex, and if you are considering the registration of either an
invention (for a patent), a trade mark or a design you would be wise to
engage the services of an Intellectual Property Attorney.
There are two
kinds of intellectual property attorneys in South Africa: Patent Attorneys
and Trademark Attorneys, both have qualifications from the South African
Institute of Intellectual Property Law. Both types of attorney are bound
by a code of ethics that is administered by the Council of the Institute
and they are members of that institute.
The other form of Intellectual Property Protection that is covered in
the main by non-statutory forms of the law is copyright. Copyright covers
works that are creations of the mind, but only once they have been reduced
to a physical entity.
The idea for a novel may not be copyrighted, but
once the idea is put to paper with the word “copyright” preferably with
a name and date, it is legally the property of the author, and may only
be copied with the express permission of the author.
If you have any questions regarding Intellectual Property in South Africa, please feel free to consult one of our Intellectual Property attorneys.
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