What is a Patent?

In today’s knowledge-based economy, intellectual property is a valuable asset that can shape the success of businesses, artists, inventors, and entrepreneurs. Understanding how to protect your intellectual property is critical, and two of the most common ways to do so are through patents and copyrights. Though both are vital tools for safeguarding creations, they serve different purposes and apply to different types of intellectual property. 

A patent is a form of legal protection granted to an inventor for a new and useful invention or process. It gives the patent holder exclusive rights to make, use, sell, or license the invention for a set period (typically 20 years from the filing date). The core idea behind patents is to reward innovation and provide inventors with the incentive to disclose their creations to the public, enabling others to build on those ideas once the patent expires.

Patents cover inventions that are:

  • Novel: The invention must be new and not have been publicly disclosed before.
  • Non-Obvious: The invention must not be obvious to someone with knowledge in the relevant field.
  • Useful: The invention must have a specific, practical utility.

Patents can apply to a wide range of inventions, including machines, devices, chemical compositions, and processes. For example, if you invent a new type of engine that is more fuel-efficient than current designs, you would apply for a patent to protect your invention.

What is Copyright?

Copyright, on the other hand, is a form of protection granted to the creators of original works of authorship, such as literary works, music, art, films, software, and even architectural designs. Unlike patents, which protect inventions, copyrights protect the expression of ideas. A copyright allows the creator to control how their work is used, reproduced, distributed, and displayed. The holder of a copyright can prevent others from using their work without permission, and they can license or sell the rights to others.

Copyright protection automatically applies to original works as soon as they are fixed in a tangible medium of expression (e.g., written down, recorded, or saved digitally). This means you don’t need to register a copyright to receive protection, although registering it with the relevant copyright office offers additional legal benefits, such as the ability to sue for statutory damages in court.

Works that can be protected by copyright include:

  • Literary works (books, articles, essays)
  • Musical works (songs, compositions)
  • Dramatic works (plays, scripts)
  • Visual arts (paintings, drawings, sculptures)
  • Software and computer code
  • Motion pictures and audiovisual works

Key Differences Between Patents and Copyrights in South African Law

Now that we have a basic understanding of patents and copyrights, let’s explore the key differences between the two:

1. What They Protect

  • Patents protect inventions and innovations that are new, useful, and non-obvious. This can include products, processes, machines, and chemical compositions.
  • Copyrights protect original works of authorship, such as books, music, paintings, and films. It does not protect the ideas themselves, but rather how those ideas are expressed.

2. Duration of Protection

  • Patents typically last for 20 years from the filing date (though there are some variations depending on the type of patent). Once the patent expires, the invention enters the public domain and can be used freely by others.
  • Copyrights last for the life of the author plus 70 years (for works created by individuals). In the case of corporate authorship, the duration is generally 95 years from the date of publication or 120 years from creation, whichever is shorter. After the copyright expires, the work also enters the public domain.

3. Eligibility

  • Patents are available only for new inventions or discoveries that meet the criteria of novelty, utility, and non-obviousness.
  • Copyrights apply to original works of authorship that are fixed in a tangible medium of expression. The work must be creative, but it does not need to be an invention or something novel.

4. Protection Mechanism

  • Patents provide a monopoly, meaning the inventor can prevent others from making, using, or selling the invention without their permission. This gives the inventor exclusive control over the invention for a specific period.
  • Copyrights provide the creator with exclusive rights to copy, distribute, perform, and create derivative works based on the original creation. Copyright holders can also license their rights or sell them.

5. Registration Requirements

  • Patents must be formally applied for and granted by a patent office (e.g., the United States Patent and Trademark Office or the South African Patent Office) before protection is granted. The application process is often lengthy and complex, involving a detailed examination of the invention’s novelty and utility.
  • Copyrights automatically protect original works as soon as they are created and fixed in a tangible medium. While you do not have to register a copyright to receive protection, registering it with the relevant copyright office can provide added legal benefits and make it easier to enforce your rights in court.

6. Scope of Protection

  • Patents offer protection over the functional aspects of an invention. For example, a patented invention might cover how something works, its structure, or the process involved in making it.
  • Copyrights protect the artistic and creative expression of ideas. For example, the text of a novel, the melody of a song, or the visual design of a website are all protected by copyright.

When to Choose a Patent vs Copyright?

Knowing when to apply for a patent or copyright depends on the nature of your creation:

  • Patent: If you’ve developed an entirely new invention, process, or device that offers a technical solution to a problem or serves a specific function, you will need a patent. For example, if you invent a new machine, medical device, or unique manufacturing process, a patent will be the best way to protect it.
  • Copyright: If you’ve created an original work of authorship, such as a book, film, song, or artwork, copyright will protect your expression. Copyright is ideal for creators who are focused on artistic or literary creations rather than technical inventions.

Can Patents and Copyrights Overlap?

Yes, in some cases, an invention or creation can be protected by both patents and copyrights. For example:

  • Software: The functional aspects of software, such as algorithms or code that solve a problem, may be eligible for patent protection. Meanwhile, the visual elements of the software (e.g., user interface design or documentation) can be protected by copyright.
  • Designs: A new product design may be patentable for its functional aspects, but the visual appearance or artistic features could also be copyrighted.

Protecting Your Intellectual Property

Understanding the difference between patents and copyrights is essential for creators, inventors, and businesses looking to protect their work. Both forms of protection serve different purposes and cover different types of intellectual property. If you’re uncertain which type of protection is right for your creation, it’s best to consult with an intellectual property attorney, such as the experts at Burger Huyser Attorneys, who can guide you through the process and ensure your ideas are properly protected.

By securing the right type of intellectual property protection, you can maintain control over your creations, avoid potential infringements, and maximize the value of your innovations. Whether you’re inventing a new product, writing a novel, or designing a logo, knowing whether to seek a patent or copyright is key to safeguarding your intellectual property for the long term.

Contact Burger Huyser Attorneys: If you need assistance navigating the complexities of patent or copyright law, the team at Burger Huyser Attorneys is here to help. Contact us today for expert advice on protecting your intellectual property and ensuring that your creations remain safe and secure.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE