Patents and copyrights are quite different in terms of the law. A patent may be granted by the State to the inventor of a new invention once the invention has complied with certain requirement.
Copyright, on the other hand, is automatic for any new literary, musical, or artistic work created by an author, poet, artist, sculptor or the like. Patents and copyrights are only similar in that they give protection to the owner, but copyright cannot be granted for an invention, neither can patents be granted for a work of art or a musical score.
If you have a new invention that is non-obvious and that is useful in trade, industry or agriculture then you can probably apply for a patent for it – provided you are the invention’s rightful owner. A patent is granted by the State – in the case of South Africa by CIPRO, the Companies and Intellectual Property Registration Office in Pretoria.
A patent is regarded in law as legal property and it can be disposed of in the same way as any other property. It gives the owner the right to prevent all others from exploiting the invention for the life of the patent, in the case of South Africa this is normally twenty years. Just like any other property, a patent may be sold, licensed out, mortgaged or even just given away.
Unlike patents, copyright does not have to be registered with CIPRO. If you have an idea that you have made tangible – it may be a novel, a poem, an essay or a painting – anything that you have creatively thought up and recorded for others to see, provided you were not commissioned to carry out the work by others, the copyright is yours.
It is always a good idea to mark the fact that you own the copyright by placing a © or the word ‘copyright’ along with your name and the date at the foot of the work.
If you think that there may be litigation at any time in the future, one way of ensuring that the copyright is yours is to place the work in a sealed envelope along with the date and to post it to yourself, retaining the seal when the envelope is delivered.
Please note that this is not effective for patents, as the only way of obtaining an enforceable patent right is by filing a patent application and prosecuting it to grant.
Patents is more costly than copyright as patents normally involve the use of a patent attorney, whereas copyright is free, as it does not need to be registered. Unlike a patent’s 20-year validity, a copyright remains valid for fifty years after the death of its owner. Copyright is regarded as legal property in the same way as a patent is, although it obviously has different applications.
Copyright may therefore be disposed of in any way that the copyright owner wishes. A good example of this would be when an author of a best selling novel sells the film rights to a movie company.
If you have any queries regarding patents registered design rights, trade mark, know-how protection, database protection, or copyright, please feel free to contact Smit & Van Wyk IP.
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