From a technology point of view, the Copyright Act of South Africa protects original works such as artistic works including technical drawings and moulds, and computer programs against copying and unauthorised use. This protection is limited since such works can be independently created and used by anybody if there is no copying of the original works involved. The Copyright Act of South Africa excludes three-dimensional artistic works made by an industrial process. Patents protect new and inventive inventions such as devices, machines, methods, processes, substances etc. The novelty and inventiveness hurdle to overcome is high for patents however, the protection provided by patents are wide compared to copyright since independently developed technology can still infringe on a patent. There is a wide divide between the requirements, objects and scope of protection between copyright and patent protection. Registered Designs fill this gap to a large extent.
Simply put, a Registered Design protects the way something looks, which can be aesthetic or functional or both. To be validly registered, an aesthetic design must be new and original and a functional design new and not commonplace in the art. The design must be applied to an object intended for industrial multiplication. The requirements are higher than for copyright protection but significantly less than for patents. The design of any object to be multiplied by an industrial process can be protected, which is almost as wide as the artistic work category provided for by the Copyright Act and wider than the types of objects which can be protected by patents. With regard to the scope of protection, an independently created design can still infringe a Registered Design provided it is not substantially different, which provides a fairly wide scope of protection compared to copyright protection.
The main advantages of registered designs are firstly the relatively low requirements to be registrable, the wide variety of objects which can be protected and the relatively wide scope of protection. In addition, the cost to register a design is significantly less compared to patents and the cost to enforce a Registered Design is also significantly less than that of a patent. However, an aesthetic design provides protection for 15 years and a functional design provides protection for 10 years, which is less than that of the 20 years for patents and the 50 years plus protection provided by the Copyright Act. The Copyright Act of South Africa excludes three-dimensional artistic works made by an industrial process. Such works can only be protected by Registered Designs. To make matters a little more interesting and to protect the spare parts industry, the Registered Designs Act does not provide protection for spare parts, which, if it qualifies, can only be protected by patents.
It is good to be aware of the relationship between Copyright, Registered Designs and Patents to be able to effectively protect your intellectual property and not to underestimate the protection which can be provided by Registered Designs.
Written by Pieter Venter, a qualified attorney and patent attorney. For more information on Intellectual Property in South Africa please contact the writer at Hahn & Hahn, specialists in Intellectual Property Law.