IP attorneys frequently hear from clients that want to 'copyright their idea'. However, this is not possible – copyright protection extends only to the material expression of an idea and not the idea, concept, procedure or method itself.

Copyright is a form of IP protection that is available to the creators of original works. Works that are eligible for copyright protection include:

  • literary works;
  • musical works;
  • artistic works;
  • cinematograph films;
  • sound recordings; broadcasts;
  • programme-carrying signals;
  • published editions and
  • computer games.

In order to qualify for automatic copyright protection, a work must be original, the author must be a qualified person (in the case of an individual, a South African citizen or a citizen of a Berne Convention country, or someone who is domiciled or resident in South Africa or in a convention country; or in the case of a juristic person, a body incorporated under South African law or the law of a convention country) and the work must exist in material form.

Copyright protection entitles a copyright owner to prevent an unauthorised third party from copying (ie, reproducing or making an adaptation of) the material expression of the copyrighted work. However, the underlying idea or concept is free for the taking. For example, if someone has a business plan, the expression of the plan is protected and no one can copy the material plan itself or a substantial part thereof ­– but they can still use the idea behind the business.

This awkward relationship between ideas and expressions in copyright law is commonly referred to as the 'idea/expression dichotomy'. This distinction has been the cause of much debate and even confusion in the world of copyright law; some authors argue that an idea cannot exist independently of its material expression, while others insist that the two are distinct.

If ideas were protectable, there would be no competition. A good example of this is Uber, which was the first mobile app-operated taxi service. If Uber had been able to protect the idea behind it, rival apps such as Taxify would not exist. Although Uber cannot protect its idea or underlying concept, Taxify cannot copy Uber's layout or the artistic works on the app, as Uber can probably claim copyright protection over these.

Uber can also protect its name and logo, so Taxify cannot use an identical or similar version of either.

However, where an idea involves an inventive step, authors can and should protect the underlying inventive concept by filing for a patent. Speaking to a patent IP attorney will be the first step in doing so.

For further information please contact Zama Buthelezi at KISCH IP by telephone (+27 11 324 3000) or email (zamab@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.