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Can someone use your ideas and posts on social media platforms without your consent?

Last week we were asked to do a blog on Intellectual Property; in the sense that someone complained to us that people were using her ideas and posts on social media platforms without her consent.

Can they do that??

Intellectual property, in its broadest sense, can be an invention, an idea or a process/method of doing things that is the product of your work and/or your mind and would include registered trademarks and patents which are formally registered; but also your songs, music and even your blogs, writings, essays, articles and other writings such as poems, letters etc. They all form part of your Intellectual Property. You have the copyright in your IP.

So the question arises can someone else use your ideas?

The short answer is: No, they cannot; without your consent or in some instances only, without your consent, but then they must credit you as the source of the original idea and not pretend that it is theirs. If they do not do so; that amounts to plagiarism and you have legal rights to compel them and hold them liable for their actions.

The rights of a person who has thought of or invented something that others might want to use or profit from; is the basis of IP protection.

In South Africa, IP rights are acquired to various categories of intellectual property (IP) either by registration or under and through enforcement of the common law.

Registration processes exist for designs, trademarks and patents and are conducted by and through the Companies and Intellectual Property Registration Office (CIPRO).

CIPRO keeps a public record and its website gives you detailed information about the IP regime and extensive additional related information.

Copyright is not subject to registration in South Africa (but is in some overseas countries); and a claim to copyright is South Africa is identified by using the © symbol; followed by the name of the copyright owner and the year (eg © The Legal Advice Office 2018). It is beyond the scope of this blog to discuss the full range of material in which copyright vests; however, there are specialist websites which address that particular topic.

The above categories of IP can be transferred to a third party and are often included as part of the deed of sale in the sale of a business. However, any sale of IP may also have tax implications when goodwill is included with the sale of a business and we then strongly recommend that you get appropriate professional legal advice when dealing with the transfer and sale of IP either through a business sale or simply a sale of IP on its own.

Another type of IP is covered by the term “Confidential Information” which protects information not in the public domain and which, very often, includes know how, business plans and business methodology. This leads to “Confidentiality Agreements” and “Confidentiality Clauses” being incorporated in for example business and employment contracts.

Also when a business contracts with an outside service provider to provide it with certain goods and/or services, the business will often require the service provider to sign a “Confidentiality Agreement” protecting its proprietary information and incorporate this as an essential and express term of their contract.

An employer, as suggested above, will also generally include a “confidentiality clause” in an employment contract; especially when engaging executives and other senior management staff. When the employment contract is terminated by the effluctuation or time or otherwise; a formal “release document” may also include an undertaking whereby the executive/employee is to refrain from disclosing certain confidential information regarding their previous employer and its company.

Your IP is protected and if someone infringes your legal rights in respect of your IP; you can enforce those rights by law and also hold the person responsible delictually for any damages you may suffer as a result of their infringement.

If you have an IP query please send us an email.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 41 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 19 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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