Category Archives: Copyright

Mobile apps – how do you protect them?

Mobile_Apps

During the last few years, there has been a staggering growth in the number of mobile applications (‘apps’) that have become available for download in leading app stores, and there is no sign of this trend slowing down anytime soon. The question that all developers face is whether it is possible to protect the underlying concept(s) of my newly developed app, or any other computer program for that matter and if so, how do I go about protecting same?

In terms of South African copyright law, computer programs (including apps) as such qualify for copyright protection. Therefore, as soon as an original computer program is reduced to a material form, it is automatically protected by way of copyright. Unfortunately, copyright protection only extends to the particular embodiment of the source code and layout on the screen of a mobile device, and will not afford any protection against copying of the concept(s) on which the computer program is based. The result is that in very few instances copyright would afford a computer program sufficient protection.

So, if it turns out that copyright does not provide an app with the desired degree of protection, is there another option that developers could look into in order to protect their apps? The answer to this question could be a patent. According to South African patent law, any invention is patentable in general if it is new, involves an inventive step and is useful in trade, industry and agriculture. Although our Patents Act (‘the Act’) does not define what an invention is, it at least provides a list of items that are not regarded as patentable. One of the listed items is a “program for a computer”. Fortunately, the Act states further that the list of items is unpatentable “only to the extent to which a patent or an application for a patent relates to that thing as such”. The reason for listing computer programs as such might well be for the fact that they are the subject of copyright protection.

Our South African courts have unfortunately not yet been asked to adjudicate on the patentability of computer-implemented inventions. However, the European Patent Convention, which deals with the granting of European patents, includes a similar exclusion relating to computer programs, and there has been a significant amount of case law in Europe in this regard. The approach that the European Patent Office follows, and which should be followed in South Africa, is that computer-implemented inventions, as with all inventions, are patentable only if they have technical character, are new and involve an inventive technical contribution to the prior art.

Therefore, once a new app has been developed, it is advisable to approach and obtain the inputs of a patent attorney as soon as possible and before the app is disclosed to the public. Otherwise, if it later turns out that the app is of a technical character and has a unique functionality and no patent application was filed in respect of same, the developer would not be in a position to prevent others from developing another app performing a similar function.

For more information, please contact:

Werner van der MerweWERNER VAN DER MERWE
Associate Attorney
Department: Patents
Tel: +27 11 324 3073
Email: wernerv@kisch-ip.com

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Time for change

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By Moran Lie-Paz

If you do not own a work protected by copyright, you definitely use copyright protected works. The amendment to the Copyright Act proposed by the Department of Trade and Industry therefore affects us all, and you can now comment on these proposed amendments, if you wish. There are various proposed amendments from definitions to additional rights and new offences. I will only provide a short summary of some of these proposed amendments. It is up to you to decide whether you believe that these amendments are for the better, or not.

Resale Royalty Right

The creators of artistic works will enjoy the newly introduced “resale royalty right”. It will be mandatory to pay the creators of artistic works a resale royalty of 5% of the commercial resale price of their work. This right will not be capable of being transferred to anyone else or being waived through agreement. If a royalty payment will not be made, this will be regarded as a criminal offence. The types of works that will enjoy this right will be, amongst others, paintings, sculptures, photographs and even works of architecture and craftsmanship. This may have a drastic affect on many industries, for example, will property prices have to increase to cover the 5% royalty payment to the architect?

The resale royalty right will also apply to the creators of the newly introduced “craft work”, which includes folk art and other hand-made works and toys. It will be challenging to establish who the creators of these works are.

Orphan works

If a copyright subsists in a work but the creator cannot be located or is unknown, the state will become the owner of this work. Only if the rightful copyright owner is located, will the copyright be conferred back. In addition, the amendment states that when the state is the owner of a copyright, such copyright cannot be assigned. As such, all orphan works that remain unclaimed will remain in the hands of the state. The resale royalty rights of any such works will therefore also vest with the state. In addition, it will be a criminal offence to contravene any provisions in relation to orphan works. The question to be asked is, is this necessary and for whose benefit are these provisions really.

Collecting Society

Collecting societies will have to be registered to collect royalties for our musicians and performers. Each collecting society will distribute these royalties to the musicians and/or performers who are owed such royalties.

Anyone who will wish to play a sound recording or show a performance to the public will have to plan this in advance. Prior approval will have to be obtained from either the copyright owner or the collecting society, by way of a proposal including the terms and conditions for the payment of the royalty. If the proposal is rejected, the Intellectual Property Tribunal will adjudicate the matter. This requires very serious planning. I hope we are equipped for this.

Broadcasting local content

The amendment to the Act further proposes a “proudly South African” amendment. The broadcasting industry, and local programming and production in radio, will be under an obligation to develop the culture and support the growth of local content by broadcasting 80% local content in public channels and stations, and 60% in private channels and stations. Be ready to be dazzled by South Africa’s finest at least 60% of the time!

Assignment of copyright

When assigning/transferring a copyright, such agreement will only be valid for 25 years from the date of the agreement. This is a very interesting amendment, it makes one wonder what would be the reason for this proposed change.

The above is a small taste of the proposed amendment to our Copyright Act. As you can see these are very drastic proposed changes. They say change is good and that good things are worth the wait. We have been waiting for amendment and improvement of the Act for quite some time. It is up to you to decide if these changes are good and if the wait was worthwhile.

If you wish to see the full proposed bill, you can view it on the DM Kisch Inc. website (www.dmkisch.com).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.