Hilary Muza 
IDEAS are the lifeblood of any business. They fuel innovation, which feeds capacity and growth. Indeed, the ability of a corporation to remain inventive ultimately determines its long-term success.
This week, I’ll touch on why corporations and individuals should respect ideas, who owns them, and, most importantly, how to safeguard them. All of this falls under the purview of intellectual property (IP) law. Understanding IP rights will help you answer important issues such as, “Can you sue someone for using your idea?” Can a corporation pursue an employee who has used company secrets to start his or her own business, for example? I shall discuss these and other topics briefly here.
What is IP?
IP rights are legally protected entitlements originating from intellectual work in research, industry, and art. As a result, IP encompasses everything from music, drawings, and paintings to scientific creations such as software and other scientific ideas. Having these rights means that IP cannot be utilised without the owner’s express permission. It also implies that holders of IP rights have recourse if their rights are violated.
Types of IP
There are two types of IP. The first is industrial property, which includes inventions and industrial designs, as well as trademarks and unfair competition protection. The second category is copyright and adjacent rights. Copyright refers to literary, artistic, theatrical, musical, and film rights.
This includes reproduction, public communication, adaptation, and translation rights. Any literary, musical, artistic, or audio-visual work, sound recording, broadcast, programme-carrying signal, or published edition that can be subject to copyright is considered a work. The Industrial Designs Act [Chapter 26:02] and the Copyright and Neighbouring Rights Act [Chapter 26:05] govern these elements.
How IP rights arise
When IP rights are registered in accordance with the law, they are generally protected in Zimbabwe. For example, if you develop unique, imaginative, and industrially useful innovations, you can file an application under the Patents Act [Chapter 26:03] for a legal document known as a patent. A patent is issued by the Patent Office and protects an innovation within Zimbabwe by granting the licensee exclusive rights in the patented invention to the exclusion of all others. Industrial designs, trademarks, and integrated circuit layout designs are all examples of IP.
They must also be registered in accordance with the relevant parliamentary Acts, which are the Industrial Designs Act [Chapter 26:02], Trade Marks Act (Chapter 26:04), Integrated Circuit Layout Designs Act (Chapter 26:07), and Geographical Indications Act (Chapter 26:06). A geographical indicator is a label on a product that indicates that it comes from a specific geographic location and is related with the qualities and reputation of that location. ‘Tanganda Tea’ or ‘Mazowe Orange Crush’ are two examples.
The registration of IP rights is not done casually. It is subject to a variety of severe regulations, thus it is best to appoint your IP lawyer to handle the registration on your behalf in most circumstances. In contrast, copyright IP has an alternative method of protection in that it does not require registration. Protection of copyright applies automatically from the date of creation of the work.
How long does a copyright last?
Copyright lasts 50 years. In the case of music, literature and art, it lasts the duration of the creator’s life and another 50 years after his/her death.
Plant breeders also have registrable IP rights
If you are a plant breeder and have come up with a new variety of tobacco, for example, you can register your IP rights in terms of the Plant Breeders Rights Act [Chapter 18:16]. A plant variety is considered new if it has not been previously sold or marketed in Zimbabwe. The plant variety must be distinct from any other variety in the public domain at the date of the application, uniform in its relevant characteristics and stable.
Is an idea IP?
An idea is defined as “a thought or suggestion as to a possible course of action.” As a general rule, the law protects the expression of an idea and not the idea itself. For example, you cannot sue someone for developing a business idea that you were merely thinking about. There are ways of protecting your ideas while they are still in the incubation phase, though these are not ideal. One can use non-disclosure agreements to ensure that whoever listens to an idea does not convert it to registrable IP.
Who does IP belong to in an employer-employee relationship?
Where IP is created in the course of employment or during a commission, that work generally belongs to the employer. The Industrial Designs Act for instance provides that where a design is created by an employee, the employer is the owner of the design. Another example is a journalist writing in the course of his or her employment. Work done under these circumstances also belongs to the employer. If one, however, creates a work absent of any employment contract or commission, then they own the work. To avoid disputes, it is often best practice to address issues of ownership of IP in employment contracts.
Protecting trade secrets from former employees
IP by its nature deals with the protection of unique ideas that only very specific people have rights to exploit. It is not uncommon, however, for employees to leave work and seek to use trade secrets gained from former employers in their own ventures. Trade secrets such as specially customised software or industrial designs not only define how a company works, but also determine the kind of clients a company can attract.
Where a former employee exploits a trade secret without consent, they not only violate the employer’s IP rights but also gain unlawful access to that employer’s trade connections. In such cases, the employer may approach the courts for an order restraining the former employee from trading using the former employer’s trade secrets and trade connections. The law does not contemplate that there should be no competition in business. It contemplates that competition should be fair. It is therefore, an important matter of public policy that companies and their IP be protected from inappropriate exploitation.
Muza is a duly admitted lawyer with expertise in business law, labour law and commercial litigation. He writes in his personal capacity. For feedback, email him at hilarykmuza@gmail.com or call on +263719042628.
