In this guide, we’ll be looking at how to protect your mobile app or software. Should you patent, copyright or trademark your idea?
Aalia Manie a partner in the technology, media, telecommunications and intellectual property practice at Webber Wentzel, shares how you can protect your intellectual property in South Africa.
You can’t patent your app
This is because the South African Patents Act excludes computer programs “as such” from the definition of “inventions”. Something must fall within the ambit of an ‘invention’ in order to be patentable. However, there hasn’t been litigation to test this principle in the Patents Act.
There is a possibility of a patent where the relevant technology has a technical effect, can make a technical contribution or can solve a technical problem in a way that it not obvious and novel, as it could then go beyond a mere computer program ‘as such’. This is tricky and will depend on the applicable facts and the functionality of the technology.
But, you can copyright it
App’s qualify for copyright protection in several respects, namely:
As a computer program (as defined in the Copyright Act) namely the software code by which the functionality of the App is technically carried out (typically in the form of source code); and additionally, as artistic and / or literary works, where the unique visual layout (look-and-feel) of the App is concerned.
Computer programs are automatically protectable under the Copyright Act. Specifically, the source code is recognized as a work capable of copyright protection. This right arises automatically in the hands of the person that oversees the development of that source code (or his/her employer). In addition, copyright may also extend to the layout, content, artwork and characters embedded or forming part of the computer program.
The main thing to ensure is that you can prove that you or your employee was in control over the development of the source code
There is currently no application or registration cost associated with copyright protection. The main thing to ensure is that you can prove that you or your employee was in control over the development of the source code. Alternatively, if a service provider did it for you, then your contract must provide for a proper assignment of the copyright to you. You will not automatically own the copyright simply because you commissioned or paid for the work to be done.
Copyright protection does not, however, extend to the concept or purpose of the App, but is confined to the material form in which it has been expressed. To the extent, however, that the purpose and concept of an app constitutes an invention under the patent legislation, a patent may be obtainable.
What can be trademarked
The brand, name, logo or tagline under which the technology is to be marketed and sold (e.g. Microsoft, the Apple logo or “think different”) may also be capable of being protected as a trademark.