Pro­tect­ing in­tel­lec­tual prop­erty

The in­ter­net has cre­ated a plat­form to gen­er­ate rev­enue. But how does one pro­tect cre­ative and po­ten­tially mon­etis­ing en­deav­ours?

Finweek English Edition - - ON THE MONEY -


in­ter­net – a global con­tent mar­ket and plat­form to cre­ate, dis­trib­ute, con­sume and share. And along with that comes risk to in­tel­lec­tual prop­erty, risk to ideas and re­sults of cre­ative en­deav­ours like de­signs, mu­sic and lit­er­ary works.

The re­cent Money­web/Fin24 court case high­lighted some of the copy­right prob­lems that could arise when pub­lish­ing and re­pur­pos­ing on­line con­tent.

For the cre­ative in­dus­try, the in­ter­net has been both boon and curse. By­pass­ing tra­di­tional av­enues that can be both a bar­rier to en­try as well as costly, artists have rel­ished the op­por­tu­nity to take their cre­ative con­tent global through the on­line plat­form.

But be­ing able to ac­cess con­tent on the web has reper­cus­sions. To­day al­most any­thing can be down­loaded and sam­pled, putting con­tent at risk from all forms of piracy like pla­gia­rism and copy­ing.

“If you want to pro­tect your work, you have to do it in the same way as pro­tect­ing your pri­vacy,” says Hugh Me­lam­dowitz, a part­ner at Spoor & Fisher. “Un­der­stand that your abil­ity to con­trol the dis­sem­i­na­tion of up­loaded works be­comes very dif­fi­cult. As soon as you push send it’s out there and you lose con­trol.”

“Most peo­ple think be­cause some­thing is on the in­ter­net it’s in the pub­lic domain and there­fore one can make copies and use the work. That is not cor­rect. While there is noth­ing wrong with dis­tri­bu­tion over the net, the ques­tion is when ef­fect­ing dis­tri­bu­tion whether you are re­ward­ing the cre­ators of the work,” says Me­lam­dowitz.

Pro­tec­tion of artis­tic works is af­forded glob­ally by copy­right leg­is­la­tion, but while cre­ators are the­o­ret­i­cally able to pre­vent in­fringe­ment, it doesn’t mean that they do. “The ma­jor dis­in­cen­tive to lit­i­gat­ing on copy­right in­fringe­ment is that the re­turn is not go­ing to be par­tic­u­larly high, nor­mally a max­i­mum roy­alty of 10% of the prod­uct. So you are not talk­ing much money. When you do catch some­one in­fring­ing, the cost and re­turn has to be weighed up very care­fully.”

In­fringe­ment can some­times be set­tled quickly by is­su­ing a Let­ter of De­mand, at a cost of around R2 000. But should lit­i­ga­tion be pur­sued this can eas­ily cost R300 000, Me­lam­dowitz tells fin­week.

Copy­right in­fringe­ment is not the only fac­tor that cre­ators need to con­cern them­selves with. There are ram­i­fi­ca­tions to shar­ing and up­load­ing con­tent that could af­fect their rights.

“As soon as you start giv­ing away your con­tent, you limit your rights. The new rights hold­ers will be those who con­trol con­tent,” says Me­lam­dowitz.

Mea­sures such as copy­right de­ter the mis­use of cre­ative works. But if the in­tel­lec­tual prop­erty forms part of a com­mer­cial ven­ture there is even more rea­son to mit­i­gate risk. Aside from putting in place those steps nec­es­sary to min­imise risk (see box), there are le­gal routes like trade­marks and patents that af­ford added pro­tec­tion.

Hugh Me­lam­dowitz Part­ner at Spoor & Fisher

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