South Africa: Vodacom "Please Call Me" - CC Judgment

Last Updated: 4 April 2017
Article by Vicky Stilwell

The recent Constitutional Court judgment can be viewed as nothing other than a rare victory for the underdog. Whilst the issues before the court were not strictly intellectual property law issues, the matter is certainly an interesting one for innovators and inventors. The majority of ordinary South Africans are aware that intellectual property exists, but have no knowledge about the types of intellectual property that exist in South Africa, when they apply or what can be done to register or enforce their intellectual property rights.  In the context of the number of disputes that are adjudicated by South African courts on a daily basis, the percentage of disputes that are based on intellectual property law is very small. That having been said, disputes arise all the time but most are settled between the parties before they go as far as getting to court.

While the Vodacom Please Call Me judgment is really a victory for the underdog, it also shows that the South African courts will uphold the rights of inventors and other intellectual property owners, but that is obviously and somewhat sadly, only when the inventor has the means to challenge the matter in court. Intellectual Property litigation is extremely costly and as such not many people are able to use the legal remedies available to them. It is expensive particularly because most forms of intellectual property, for example, patents, trade marks and designs, with the notable exception of copyright, must be registered in order to be enforceable and it is costly to register. It is also necessary to note that most forms of intellectual property are territorial in nature and must therefore be registered in each and every country where it will be used. Although it is not very costly to register patents, trade marks and designs in South Africa, repeating the exercise overseas is very expensive.

Once an idea, concept or invention has fallen into the public domain, it is extremely difficult to enforce and protect. For example, disclosure to the public (anywhere in the world) would destroy the novelty of an invention that would otherwise qualify for patent protection. The same applies to registered designs although in that case there is a 6 month grace period following any public disclosure in which design applications may still be filed.

One of the main challenges faced by individuals is finding the financial resources to protect and commercially exploit their ideas. A further complication is that in most instances individuals need to approach companies, government departments and other institutions and organisations for assistance with funding to further develop, protect and / or commercially exploit an idea. The risk is that organisations that are approached may steal the idea. In addition, if a disclosure is not made in confidence, it can again destroy the novelty of an invention.

A way to combat these risks is to require potential funders to sign a non-disclosure agreement prior to disclosing an idea. Another difficulty, though, is that most big corporations and government departments and institutions are, for various reasons, unwilling to sign such agreements. This places the individual somewhere between a rock and a hard place!

In the event that a potential funder refuses to sign a non-disclosure agreement the individual should, at least, make it clear that any disclosure he makes is confidential. This will assist in preserving the novelty of any patentable invention that he may disclose.

Individuals need to be aware of basis intellectual property law principles. This means that they need to understand the difference between the various forms of intellectual property and know what their rights are.

It is also important for employees to understand the terms of their employment contracts and the intellectual property law principles relating to ownership of works or inventions created or conceived in the course and scope of employment. Most employment contracts contain a provision stating that any works or inventions created or conceived in the course and scope of their employment will belong to the employer.  Both the Copyright Act and the Patents Act in South Africa also provide that works / inventions created or devised by an employee in the course and scope of his employment will be owned by the employer.

What is interesting to note is that in the "Please call me" case the Applicant, Kenneth Makate, was employed by Vodacom as a trainee accountant, so his development of the "Please call me" product would not have fallen within the course and scope of his employment, which means Vodacom would not have relied on the provisions of the Copyright Act or the Patents Act to claim ownership of the invention. The Patents Act also states that any provision in an employment contract which requires an employee to assign ownership of an invention developed outside the course and scope of employment to his employer is null and void.

Individuals also need to be aware that copyright is a very strong tool that can be used to protect intellectual property. Copyright subsists in various types of works including literary works (e.g. books, essays, poetry and other documents) and artistic works (e.g. photographs, drawings, paintings, etc). In South Africa it is generally not possible to register copyright so the right can be enforced without the need to incur registration costs.

Originally published May  2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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