Intellectual property is protected by law

Intellectual property rights are exclusive rights that grant the owner a limited monopoly to a market. Only the intellectual property rights owner has the right to make, sell and derive fair profits from a protected intellectual property. Any person who commercially exploit a protected intellectual property without written authorization from the intellectual property rights owner commits an offense punishable by law. An intellectual property rights owner can sue such a person and seek redress from a competent court of law. The Industrial Property Act, Chapter 68: 03 and the Copyright and Neighbouring Rights Act, Chapter 68: 02 are the intellectual property laws in Botswana. They provide for both criminal and civil penalties for infringement of intellectual property rights. Owners of intellectual property and associated intellectual property rights have, in addition to other rights and remedies, the right to sue any person who infringes upon their intellectual property rights. Infringement occurs where protected intellectual property is commercially exploited without permission and where the exploitation falls outside the scope of fair use. If a court of law rules in favour of an intellectual property owner, he/ she is entitled to a relief by way of an injunction, destruction of infringing goods, damages, or an account of profits. In awarding damages, courts also consider the amount of reasonable royalties that could have been paid by licensees in respect of protected intellectual property.

The amount awarded for damages depend on how successfully an intellectual property rights owner convinces a court presiding over the matter. In the case of copyright, a court may also award exemplary damages where it finds that the infringement is prejudicial to the honour or reputation of the copyright owner.

Criminal remedies are for offences committed against the state and include fines and imprisonment for specified number of years. For example, any person who deceives an officer of the national intellectual property office, or knowingly makes a false statement commits an offence. Such a person can be sentenced to pay a fine between P5,000.00 and P10, 000.00 or be imprisoned for a period of one to three years, or both.

There are other criminal offences specified in the Act. Of note are the harsh penalties provided for in the Copyright Act. Any person who contravenes the provisions of the Copyright Act and infringes a right protected under the Act for profit, is guilty of an offence and is liable to a fine not exceeding P20,000 or to imprisonment for a term not exceeding ten years or to both upon conviction. Subsequent violations of the Act attract more harsh fines ranging from P30,000.00 to P5 million or imprisonment for a term not exceeding 10 years.. The fines and term of imprisonment depend on the gravity of the offence.

The Parliament of Botswana enacted the intellectual property laws to facilitate intellectual property rights owners to enforce their rights and seek redress. It is not the duty of the government to enforce intellectual property rights on behalf of intellectual property rights owners. For a person to avoid being sued for intellectual property infringement, he must obtain written authorization to use intellectual property from lawful owners of associated intellectual property rights. If the use is not duly authorized, it is important to ensure that the use constitutes fair use. Respecting other people’s intellectual property rights should never be taken for granted.