Many of the laws relating to Intellectual Property were conceived at the time of the Industrial Revolution, many years before technology as we know it today was even envisaged.
The term “intellectual property” relates to items that are creations of the mind as opposed to material goods, and is made up of several different categories that are usually governed by several Acts of Parliament. In South Africa these are:
- The Patents Act
- The Design Act
- The Trademarks Act
- The Copyright Act
Until modern computer technology came along, these intellectual property laws were clear cut, and it is only in recent years that a certain amount of controversy has crept into the scene. Copyright covers a whole range of both artistic and intellectual creations of the mind. These include:
- Plays, poems, theses, novels and other literary works
- Dances, ballets and other choreographed works
- Musical compositions and recordings
- Paintings, drawings, photographs and sculptures
- Radio and television broadcasts and films1
- Algorithms, computer programs and other software
In the case of all of these it is important to understand that the idea of any of the above while still in the mind is not covered by copyright law – it is only when the idea is committed to paper, film or other recording media that it becomes protected by copyright.
It has always been sufficient in the past for this type of intellectual property to be covered by copyright, but the massive explosion of technology has caused many large software houses to seek greater protection in the form of patents for their software.
In the past Patent Law has specifically excluded any type of software from being patented, but one way or another thousands of patents have been granted, mostly in the United States, where the law has been amended, and Japan. In the European Union an attempt to change the law was defeated by Parliament in 2005.
In South Africa the Patents Act No. 57 of 1978 excludes software from being admissible for patents and as yet there has been no change in the law. Some large international corporations have filed for and been granted patents through a loophole in the system. Once granted, software patents are extremely difficult and very expensive to cancel.
Software certainly falls under the umbrella of Intellectual Property, but it is debatable as to whether it meets with some of the requirements that are laid down in the Patents Act, which was originally conceived to encompass new inventions in technology. The Act states that, in order to qualify for a patent, an invention
- must be new and must show absolute novelty
- must be useful on a practical level. The Patents Act requires that, for an invention to be patentable, it must be useful to commerce, agriculture or industry
- must be inventive, that is, it must not be so similar to what was available previously that it needs little or no imagination conceive.
If you need any queries answered regarding technology and intellectual property, please get hold of one of our intellectual property attorneys, who will be happy to assist you.
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