Coming up with ideas and strategies is often part of your job. But, when are the ideas you came up with really yours? Can you demand that you be credited and compensated for an innovation you introduced at work or a job interview? By Gugulethu Mhlungu
It played out like a modern day David and Goliath story when in 2016, the Constitutional Court ruled that Nkosana Makete was in fact the inventor of the famous Please Call Me service for Vodacom. The company was ordered to reasonably compensate him. This was the culmination of over 10 years of legal and court action for Nkosana, who as a junior accountant in 2000, came up with the revolutionary idea that allows cellphone users to send the text without any airtime on the Vodacom network. The true value of the idea varies, but undisputable is that it is worth billions. Lawyer and South African Institute of Intellectual Property Law (SAIIPL) president Vanessa Ferguson says whether or not you have claim to ideas generated at work depends on your employment contract. “You need to look at what your contract says about your stated function and scope of work. If you are a designer and your idea is similar or identical to your stated function, then the company could claim copyright. But, if your idea falls outside of your scope of work and you can improve that material expression of the idea, then you claim copyright. This is because your skills and talents can be used for other things.” Furthermore, Vanessa advises that you protect yourself and your ideas at work. “At work, protect yourself by not taking any material, training manuals or lists unless they are freely given to you. Also, keep your personal and professional work separate as well as all the proof and evidence.”
Protecting your genius
Soon after a new television show launches, you often hear of an aggrieved person claiming that they had pitched the idea to the channel. They then see their idea commissioned and airing or stolen. “Unfortunately, this is quite common. The reality is that people just give away ideas because unless there is an agreement in place saying a channel can’t use it without you, then there is nothing protecting it,” says Emeritus Professor of Intellectual Property (IP) Law Owen Dean. “Ideas are not protected; material expression is. And, unless you can prove that you had put your idea down on paper, in audio or visual format, then it is not protected. You have to distinguish between the idea and expression of an idea.” Vanessa agrees, suggesting that you don’t talk about ideas. Rather put them in writing or some kind of form that can be protected. “As long as ‘it is in my head’ is not good enough.” The material expression of an idea was quite pivotal in the Vodacom-Nkosana matter because he had written it down, and entered into an oral contract about him being entitled to a conversation about what would be a reasonable share for him, should the idea prove viable. The same applies to ideas and strategies you present at a pitch or job interview. Sandile*, a copywriter from Joburg, learnt this the hard way. “I pitched an idea to a creative agency for one of their clients, but didn’t get the job. Some months later, the agency launched the idea with a few tweaks, and I didn’t get a cent. When I sent a mail asking why they stole my idea, the reply was that we didn’t have any agreement that they wouldn’t use it without me.” Prof Owen says: “Unless there is explicit agreement between you and the company that the ideas are your copyright and may not be used without prior arrangement, then it can go ahead and use them.” So, if you pitch a great idea for dealing with operational issues for a particular company or hot digital strategy for a campaign and you don’t get the job, unless you explicitly stated that the copyright belonged to you, then you could be seeing your work on a billboard. “The biggest thing is that the public doesn’t understand what IP is,” Vanessa says.
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Types of intellectual property
There are different kinds of intellectual property, each with a unique set of rights and privileges. Broadly, the most popular and common are copyright, trademark, patents and designs. “Copyright refers to work created in artist form such as books, scripts, films and presentations. A trademark refers to a brand name, branding and particular style to protect a brand. Patents and designs generally look at inventions and how things work, usually something novel such as Velcro,” Vanessa explains. One entity or product can have different kinds of IP in place. A great example is Coca Cola. “The shape of the bottle, ribbon logo and name could be a trademark. Coke could have copyright in the drawings and designs of the bottle, the lid could be a specific patent if it was created specifically for Coke, and the famous secret recipe would be patent and subject to confidentiality laws.” Prof Owen explains that copyright exists automatically and while you don’t need to register a copyright for it to exist, you must be able to prove it. “For a trademark, you must file an application with the Department of Trade and Industry. Patents also need to be registered at the DTI with the Companies and Intellectual Property Commission (CIPC),” he states. In the event that your property rights are infringed upon, you can (through a High Court) sue for damages and/or claim royalties that should have been paid to you had you licensed use of your IP, and get an interdict to stop the unlawful sale or use of your idea.
- CICP – call 086 100 2472 or visit cipc.co.za
- Visit SAIIPL at saiipl.co.za
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