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Waarom SA ondernemings hul intellektuele eiendom moet beskerm
Rian Geldenhuys
​Volgens 'n onlangse waardering is Facebook se handelsmerk meer as $50 miljard werd. Rian Geldenhuys, deeltydse dosent aan die USB en direkteur van die Trade Law Chambers, sê dit toon aan hoe waardevol intellektuele eiendom kan word

When the Winklevoss twins called on Mark Zuckerberg to help them program their new campus website at Harvard, they had no idea that they would end up fighting him for the rights to Facebook in a law suit worth billions of dollars - bringing to light some important issues regarding the protection of intellectual property (IP) rights.

The fact that the Facebook brand has recently led the organisation to be valued at over $50 billion goes to show how valuable intellectual property can become - and why it is so important for businesses to invest in some form of protection for their business.

"For most businesses their livelihoods are dependent on their intellectual property as it represents a business's competitive advantage. In spite of this, many businesses still neglect to consider the options available to them in terms of protecting their intellectual property," he says.

One form of intellectual property protection is copyright. According to Geldenhuys, because South Africa does not maintain a register of copyrighted works, copyright in a work only exists if it is original and has taken some form of material embodiment. "In other words the idea for a computer program is not protected if it remains only an idea. The proprietor must actually write the source code for it to become material."

Geldenhuys advises that work which is worthy of copyright should be carefully dated in order to provide evidence of the moment the copyright subsisted in the work. A business's trade secrets can be copyrighted in the same way. 
"Businesses should also identify all its trade secrets to employees formally in their employment contracts and take steps to protect themselves against a rogue employee," he says.

According to Geldenhuys, the employment contract should detail how the trade secrets are protected and stipulate that they cannot be divulged to third parties. "It is strongly recommended that the employment contract should also contain a restraint of trade. This form of protection is akin to having the actual registration certificate".

Geldenhuys says that intellectual property rights can be protected rather cost effectively if they have been registered with the relevant authority. Once registration has been granted, these rights will be easily enforceable.
According to Geldenhuys, when intellectual property rights are not registered, the solution can become exorbitantly expensive, as it frequently results in lengthy litigation. "This does not imply that an unregistered intellectual property right cannot be protected, merely that its protection or enforcement will be cumbersome and costly," he says.

"Registration gives the business the exclusive right to exploit that intellectual property for a defined period. The business can thus easily prevent competitors from using its intellectual property or it can licence other business to utilise its intellectual property in return for royalties," he explains.


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