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22 July 2019
Intellectual property refers to creations of the mind and includes:
However, if ideas and innovation are the result of the shared lived experience of the common person, how can it be determined whether a work is 'original', as defined in, for example, the Copyright Act? Does the work have to be new? Can inspiration be drawn from another work? Do common words qualify as original works under the act?
According to the Copyright Act, for copyright to subsist in a work, it must be original and reduced to material form. Copyright does not protect an idea. In order to be original, a work need not be innovative or new, but rather it must be the result of the author's own skill, time and effort expended in creating the work. The requirement that the work must be 'reduced to material form' simply means any form of notation, whether by hand or by printing, typewriting or any similar process, including by electronic or digital means.
For example, a person's Facebook or Twitter page would qualify as 'reduced to material form'.
The current social media age has led to greater accessibility of information as people are constantly sharing information, photographs, artistic works and ideas. Therefore, it may become difficult to determine whether a work is original or merely a paraphrasing of another person's work. Copyright cannot subsist in work that is common place.
For example in Waylite Diary CC v First National Bank Ltd, Waylite contended that First National Bank had reproduced a diary that both parties had designed, and that its copyrights had been infringed. In summary, the court was of the view that for a compilation to be the subject of copyright it could not be commonplace and that the layout of the pages in question was clearly commonplace and did not warrant protection under the Copyright Act.
With the above in mind, how can it then be determined whether a work is original under the act? In South Africa, 'originality' for the purposes of subsistence of copyright means the expenditure of individual effort and expertise as distinct from copying. In other words, the "sweat of the brow". For example, a person need not prove that their work is completely new for it to be original. One of the things to remember regarding originality is that even if the underlying idea or information is drawn from a common stock of knowledge, provided that the creation of the work involved the requisite degree of skill, judgment, selection and ingenuity, copyright may subsist in the work.
For further information on this topic please contact Pamela Maluleke at KISCH IP by telephone (+27 11 324 3000) or email (firstname.lastname@example.org). The KISCH IP website can be accessed at www.kisch-ip.com.
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