Copyright: How to keep your business ideas safe

Small business owners must be creative and always find new ways to meet the demand of their customers, but what happens when someone steals their idea and copyright?

Many individuals and organisations fall victim to third parties stealing their copyright after they entrusted their work to them without much thought about the implications of disclosing their trade secrets, says Shaawn Legodi, a candidate attorney in the trademark enforcement department at KISCH IP.

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“These individuals and organisations often find it difficult to take legal action against those third parties based on copyright infringement, as they do not have sufficient evidence to prove that they are, in fact, the owner of the work in question, which is a critical criteria to meet in order to succeed in a claim of copyright infringement.”

What is copyright?

Copyright is an exclusive right granted by law for a limited period of time to protect original works or authorship. These works include, among others, literary works, such as books, artistic works, such as photographs and paintings, music, sound recordings and cinematograph films, Legodi says.

A full list of all works that enjoy copyright protection is set out in section 2 of the Copyright Act.

Can you register copyright?

Copyright automatically exists in a work eligible for protection, provided all the conditions for the existence of copyright have been met, she says.

These conditions include that the work must be original and reduced to a material form and that the author or original creator of the work is a qualified person (a South African resident or resident of a country that is a member of the Berne Convention).

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“As far as the South African law is concerned, there are no prescribed formalities for the acquisition of rights to copyright, as it vests automatically in the original creator. Simply put, copyright arises as you express your ideas in a material form, for example the moment you write down the words on a page for your next book. No registration is required or even possible for such protection to exist.”

How to prove authorship and ownership of protected work?

Legodi says it is important for creators to keep detailed records of when they started conceptualising, writing or creating their work, as well as when they made any disclosures of their work to third parties. This can be in the form of dated documents, drafts and communications, stored safely and preferably electronically.

It is also important to ensure that adequate contracts and non-disclosure agreements are in place, which deal with the issue of authorship, ownership and use of the intellectual property rights vested in the work, particularly when individuals and organisations look for funding or investment from third parties, she says.

“Once you have detailed records of your work and adequate contracts in place, the burden of proving authorship and/or ownership in a possible copyright infringement claim against unauthorised third-party users becomes far less onerous.”