Guide for Inventors

SECTION C: PROTECTING INTELLECTUAL PROPERTY

C.2. COPYRIGHT

1. What is copyright?
   Material protected by copyright is termed a "work". Copyright is the form of intellectual property protection provided to the creators of "original works of authorship" and includes literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished, that have been "fixed" in a tangible medium of expression. The copyright protects the form of expression rather than the subject matter of the work. It therefore does not extend to the idea or creative element contained in the work. In contrast, patent protection covers the concepts underlying an invention as well as their specific application.
   
   The main purpose of copyright is to reward creative efforts and to protect copyright owners from a loss of revenue as a result of the unauthorized use of their works. Copyright therefore affords economic rights to "authors" enabling them to control the use of their creations in various ways, such as preventing others from making copies, issuing copies to the public, performing the work in public, broadcasting the work, and using it on-line. It also allows "authors" to object to others distorting or altering their works. Copyright is essentially property and may thus be sold, assigned or licensed for use by others.
2. How do I ensure that my work has copyright protection?
   Copyright arises automatically, without any registration, as soon as an original work has been reduced to a material form. For most works, with the exception of films and videos, it is not necessary to register copyrights legally.
   
   Copyright exists automatically for the following types of works:
   • Literary works, including computer programs
   • Musical works
   • Dramatic works
   • Choreographic works
   • Pictorial, graphic, and sculptural works
   • Motion pictures and other audiovisual works
   • Sound recordings
   • Architectural works

In order to protect the copyright, MRC-owned materials must be accompanied by the following statement: Copyright © [year] Medical Research Council. All Rights Reserved. The date should be the year in which the work was first published.

C.3. TRADE MARKS

1. What is a trade mark?
   A trade mark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods. A service mark is the same as a trade mark except that it identifies and distinguishes the source of a service rather than a product.
   
   A trade mark can be thought of as any mark/sign used to distinguish the goods or services of one person/enterprise from those of another during the course of trade. A mark/sign can include any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent, or any combination of these.
   
   Trade mark rights may be used to prevent others from using what is referred to as a "confusingly similar" mark/sign. However, these rights do not allow trade mark owners to prevent others from making the same goods or from selling the same goods or services under a clearly different mark/sign.
2. How do I register a trade mark?
   Trade marks must be registered legally through an application to the Trade Marks Office. The application will be examined to determine whether it adheres to trade mark requirements and for possible conflict with prior registrations. The registration process currently takes 30 months or more from the date of filing. Please contact the MRC IC for assistance with registering trade marks.

C.4. PLANT BREEDERS' RIGHTS

1. What are Plant Breeders' Rights?
   Plant breeders' rights may be obtained for any variety of a prescribed kind of plant as long as it is new, distinct, uniform and stable. The holder of a plant breeders' right is granted exclusivity (i.e. the right to prevent others) in the production, sale, import into and export from South Africa of propagating material or harvested material of the protected variety. An application for the registration of Plant Breeders' Rights must be made to the Department of Agriculture. The application is examined by the authorities, which normally takes 3-5 years, and includes testing of samples of the plant.
   
   The variety may not be sold or commercially exploited in South Africa, without permission from the authorities, until it is registered. Application can be made for provisional protection in order to prevent others from doing so too during this period. This provisional protection expires on the grant or final refusal of the plant breeders' right application. As with a patent, an application must be filed in South Africa within 12 months of filing in another country if priority is to be claimed. The plant breeders' right extends from the date of grant thereof for a period of 20 years, except for vines and trees, which are protected for 25 years, provided that the annual renewal fees are paid.

C.5. TRADE SECRETS

1. What is a trade secret?
   Trade secrets refer to intellectual property that is protected through confidentiality agreements, i.e. through secrecy. Secrecy is an important option particularly for IP that cannot be protected through other legal means or where it is difficult to detect infringement, for example manufacturing processes. Protection is weaker than that afforded by either patents or copyrights because rights cannot be enforced in cases where competitors copy publicly available works (i.e. reverse engineer).
2. What is confidentiality?
   Confidentiality is a legal principle that serves to maintain secrecy between two or more parties. This becomes important when one wishes to ensure that information, particularly proprietary information in the case of intellectual property, which has been passed on to another party is held in confidence and not used improperly. Confidential information may be protected for a number of purposes. The most important reasons are to retain control over your information, to prevent others from using your ideas and to protect the novelty of inventions prior to patenting. After public disclosure information is no longer considered confidential, unless that disclosure took place under an obligation of confidence.
3. How do I protect confidential information?
   Although an oral agreement is enough to provide an obligation of confidence, the existence of such an agreement is often difficult to prove in a court of law. Confidentiality Agreement (CAs), sometimes called secrecy agreements or non-disclosure agreements (NDAs), provide documented evidence of the agreement between the parties, thus protecting the transfer of confidential information and controlling the subsequent use of that information.
4. What should be in a Confidentiality Agreement/NDA?
   An NDA should describe the subject field of the confidential information and in what form it may be transferred, as well as the purpose of the transfer. The agreement should also define how the information should be handled, in what circumstances the receiving party can use the information and for how long the obligations apply. If only one party is disclosing information the agreement should be unilateral, however if two parties will be disclosing confidential information the agreement should be bilateral. The main purpose of a CDA is to govern the transfer of confidential information, therefore other issues such as intellectual property or transfer of materials for the performance of work should be covered by additional, separate agreements if necessary. If you require a Confidentiality Agreement please click here for assistance.
5. What is a Material Transfer Agreement (MTA)?
   A material transfer agreement is a contract that governs the transfer of one or more materials from the owner (or authorized licensee) to a third party for various purposes, usually for research. Materials may include cultures, cell lines, plasmids, nucleotides, proteins, bacteria, transgenic animals, pharmaceuticals and other chemicals. MTAs can also be applicable for the transfer of materials in engineering/physical science applications.
6. Why are MTAs used?
   The sharing of reagents and materials is widespread throughout the scientific community and is vital for the progress of research. However, most commercial organizations, and an increasing number of academic institutions, will only release materials if there is an MTA in place between the provider and the recipient. For the provider, this agreement provides a number of comforts including restricting the use of the material to non-commercial research, and reducing legal liability for the recipient's use of the material. In addition, the terms of the MTA can help the provider to gain access to the results of the research, both for information purposes and for commercial exploitation.
   
   Many MTAs from commercial organizations will seek to put restrictions on publication of research results. While it is reasonable for providers to have access to copies of proposed publications or oral presentations in advance in order to remove confidential information and possibly prepare patent filings, publications should not be subject to unreasonable or indefinite time delays or to the outright veto of the provider. Companies/institutions should also not be allowed to control the content of publications, beyond the removal of their own confidential information. If you require a Material Transfer Agreement please click here for assistance.