Khadija Magardie
A Cape Town-based advertising firm, Interactive Africa, is suing a rival firm for copyrighting infringement. The rival firm, according to Interactive Africa, copied an advertising campaign idea during a bid for a major potential client.
The client, Dutch-based Internet service provider World-online, with its catching slogan “Freedom of Movement”, awarded the contract to the rival firm. But the entire campaign idea, which has featured on television and in local business newspapers, was originated by Interactive Africa.
One of the legal conditions to be fulfilled in terms of claiming damages for intellectual property theft is that there must be proof of the ownership of the idea. The advertising campaign was copyrighted with leading legal firm Webber Wentzel Bowens prior to its presentation. This lends even greater substance to the complaint.
According to Interactive Africa managing director Ravi Naidoo, the issue is not one of “trying to raid the corporate cookie jar” – the account was worth millions of rands – but one of standing the moral high ground against intellectual property theft. The claim of advertising infringement is bound to set a legal precedent in terms of curbing incidents of “stealing of ideas”.
The Advertising Standards Authority (ASA) has confirmed that a complaint had been lodged, but would not elaborate on the specifics of the case. As the ultimate authority on the issue, the ASA, if it establishes that copyright infringement did indeed take place, can issue an interdict to have the advert removed from the air and from being published. The courts only become involved if the plaintiff sues for damages.
Intellectual property refers to the ownership of property that is intangible – meaning that, generally, it is not fixed, movable or even visible. This could range from the copyrighting of ideas to trademarks and the patenting of websites on the Internet.
Interestingly, the Internet, the area which should provide the most material to fuel intellectual property wars, is also the most difficult to police.
If, for instance, material is lifted off the Internet to be used in anything from high school projects to newspaper headlines, the original source of the information – by virtue of the sheer vastness of the Internet – would find it difficult to claim the copyright as their own.
But an increasing number of website developers, including Internet service providers, are copyrighting their material. A perusal of several websites, particularly the media- generated ones, contain disclaimers indicating that the material is copyrighted.
Laws in the United States give a degree of protection to individuals in terms of intellectual property rights. Article 1, Section 8 of the Constitution grants Congress “the power to promote the progress of science and the useful Arts, by securing (for limited times) to authors and inventors the exclusive right to their respective writings and discoveries”.
South Africa has also become aware of the serious nature of intellectual property infringements.
According to Professor P Rutherford of Unisa’s law school, the issue of intellectual property is a vast domain that one cannot subject to a single blanket rule. In order to prove intellectual property theft – not an easy task – it is not enough to claim that your idea was stolen.
Copyright, just one facet of intellectual property that includes patenting, trademarks and plagiarism, protects “the idea, coupled with the form”. Essentially, what matters most is “the way in which the idea has been presented”.
Depending on the circumstances, says Rutherford, where a host of factors such as confidentiality or theft of trade secrets are at play, an individual or a company is entitled to seek legal recourse. This is provided, of course, that ownership of the material can be proven – as in the case of newspapers, almost all of which contain a copyright clause in the publications.
Meanwhile, a Mail & Guardian columnist is consulting lawyers after the Pretoria News, a publication in the Independent Group, published an article which lifted substantial portions from the original.
John Matshikiza, author of the popular column, With the Lid Off says he was “incensed” to find that prominent sections of a recently published article were lifted and found in a review on the same subject in the Pretoria News. It was the interviewee who notified the M&G about the article in the Pretoria News.
Matshikiza says this is not the first time his writings have been plagiarised. Last year, The Sunday Independent did a similar thing.
Though he was prepared to settle for an apology then, Matshikiza says he is now fed up, and that “a precedent needs to be set”. He attributes the growing incidence of intellectual property theft to what he calls “a culture of lack of respect for personal property” in South Africa.
The placing of intellectual property rights on the table will mean that South Africans will join the growing list of people worldwide who are asserting their rights over intellectual property.
This could affect everything from one newspaper copying another to the photocopying of academic material at universities. And as the grip tightens around narrowly defined plagiarisers, the law looks set to be stretched to its limits.