How can I copyright my idea?

18 May 2018

One of the most frequent queries intellectual property attorneys receive is from clients who want to “copyright their idea”. However, you can’t “copyright an idea”. Copyright protection only extends to the material expression of your idea and not the idea, concept, procedure or method itself.

Copyright is a form of intellectual property protection that is available for creators of original works. Works that are eligible for copyright protection are literary works; musical works; artistic works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions and computer games.

To qualify for automatic copyright protection, the work must be original, the author must be a qualified person (namely, in the case of an individual, a South African citizen or a citizen of Berne Convention country, or someone who is domiciled or resident in South Africa or in a convention country; or in the case of a juristic person, a body incorporated under South African laws or laws of a convention country) and the work must exist in material form.

What copyright protection entitles a copyright owner to do is to prevent an unauthorised third party from copying (i.e. by way of reproducing and/or making an adaptation of the work, etc.) the material expression of the copyrighted work. The underlying idea or concept is really free for the taking. You may, for example, have a business plan, but what that means is that the expression of your plan is protected and no one can copy the material plan itself or a substantial part of it, but a person can still take the idea of your business.

This awkward relationship between ideas and expressions in copyright law is commonly referred to as the “idea/expression dichotomy”. This distinction has been the cause of much debate and even confusion in the world of copyright law, with some authors arguing that an idea cannot exist independently from some material expression, whilst others insist that the two are distinct in that an expression is a material embodiment of an idea.

It may be useful to consider the implications if the distinction didn’t exist.

If ideas were protectable, then there would be no competition in this world. Take Uber for example. Uber is the first mobile app operated taxi service. If Uber could protect the idea of a mobile app operated taxi service, the likes of Taxify would not exist. Although Uber cannot protect its idea or underlying concept, it does however have protection in that Taxify cannot copy Uber’s layout and artistic works on Uber’s app (as Uber can probably claim copyright protection over the layout and artistic work of its app).

Uber can also protect its name and logo and thus Taxify cannot use the identical or similar name or logo.

That being said, where your idea involves an inventive step, you can and should protect the underlying inventive concept by way of filing for a patent. Speaking to a patent intellectual property attorney will be the first step in doing so.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Zama Buthelezi

Zama is an associate at KISCH IP. She is a trade mark attorney and specialises in anti-counterfeiting; domain name opinions; company name objection opinions; passing-off and unlawful competition and trade... Read more about Zama Buthelezi


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