Intellectual property (IP) is a grouping of immaterial property rights such as patents, copyrights or trademarks. Innovators or inventors often endure a lot to come up with their products or services which is why protecting them becomes necessary. Globally we usually hear stories of disputes emanating from the alleged theft of ideas. Locally there’s even an on-going case of Artwell Makumbe who alleges that Econet stole his Sasai idea. This then begs a question – can an idea be protected? This might sound weird since ‘ideas’ is in the title of my article but it’s for a reason. It’s because the first thing I want to debunk is on whether or not an idea can be protected. The short answer is you can’t (even the law can’t) protect a business idea – you’ll soon see why.
You Can Protect The EXPRESSION Of The Idea Not The IDEA
Let me elaborate on that, you can’t protect the idea (the idea is in essence intangible). By intangible I’m implying that when the idea will still be in someone’s mind. Rather what you can protect is the expression of the idea. Expression seeks to mean, for instance, when the idea is now tangible e.g. written down through platforms such as documents, videos or online, for instance. Later on, I shall discuss some ways in which you can protect your business ideas or innovations. That being the case you must still understand that you’ll be protecting the expression of the idea not the idea in itself. This is very important because many business people don’t appreciate this somewhat cold truth. This is why it’s highly advised that when your idea is still in incubation (i.e. you haven’t found its expression), you must never share it with anyone. If you’re to share with anyone during this incubation period it mustn’t be without protective measures. Examples of such protective measures are non-disclosure agreements (NDAs) or non-compete agreements – will briefly talk about this later. Let’s now discuss some ways in which you can protect your business ‘ideas’ or innovations.
This refers to rights of ownership of work which don’t necessarily require formal registration. What’s paramount is that the owner of the work be in a firm position to prove ownership in case of possible disputes. Some of the things that can be copyrighted are music, art, films, broadcasts or publications, just to mention a few. The principle is that copyrighting is normally done for original work. As you can see copyrighting can be very important when it comes to protecting your business content (for instance, in content marketing). The owner (usually the creator) wields the power to dictate how his/her work is used. The copyright owner can license the use of their work if they want. It’s most advisable to include a comprehensive copyright notice stipulating the terms of the copyrights. That’s why you have the copyright symbol (©); it must be included. The copyright notice must be fully exposed to the prospective user before (or after) they use your work – but before is most expedient.
I earlier on mentioned NDAs which are also closely related to non-compete agreements. Non-compete agreements are critically important when discussing your ideas or innovations with parties that can possibly use them to compete with you. Prematurely discussing your idea or innovation with anyone is not smart but at times it’s inevitable. For instance, when looking for strategic partnerships or looking for funding; but ensure the parties in question sign NDAs. Most people make the mistake of just drafting NDAs on their own or just obtaining them from the internet. This is can be costly because it’s possible to use NDAs that can’t be enforced. The wisest thing you must do when thinking of NDAs is to get the expert assistance of lawyers.
A trademark refers to any visual sign that can be graphically depicted to distinguish a brand. Trademarks (which can be formally registered) exclusively protect things like names, words, phrases, symbols, colours or sounds. These are items that usually uniquely identify a brand e.g. logos, taglines or names. Trademarks exclusively distinguish one’s brand from others to avoid conflict or being copied.
Patents are strategic for the protection of designs (or inventions) with the intention of being exclusive and to ward off any possible competition. Patents are often referred to as industrial property rights. Examples of things that can be patented are machines (or gadgets), industrial processes (includes software), chemical formulas or manufactured products. Patents are valid for a specific time during which the owner has exclusive rights to use, prohibit the use of, sell or license the use of their innovation. Let me point here that obtaining patents tends to be a long and expensive process. The validity of a patent varies from country to country; some can be 10 years or 20 years. Just like trademarks, patents have to be registered; copyrights need no prior registration (they’re basically automatic).
You must do the homework beforehand to see how you’ll protect your ‘ideas’ or innovations. This area we’ve been discussing is mostly legal hence the need to consult lawyers to get a full understanding. Let me tell you of a short story of a company that patented a device it had developed. Another company copied innovation and starting selling it. The original company sued it but they lost the case because it turned out they hadn’t patented it in the stipulated time frame. In fact, the original company was fined and also ordered to reimburse the other company’s legal fees. So don’t take emotional or moral perspectives because at times what you consider wrong or insensitive can actually be legal. For issues such as patents, trademarks or copyrights we have a local office for that The African Intellectual Property Office (ARIPO).