Intellectual Property (IP) is a work of the mind. It refers to a creation or invention that results from the application of one's creativity. Intellectual Property laws deal with the protection of rights that accrue to the creators and/or co-creators. IP covers 5 major areas; Copyright, Patents, Trademarks, Competition and Trade Secrets, and, Rights of Publicity.
In Botswana, the "Copyright and Neighbouring Rights Act" and the "Industrial Property Act" are the primary laws governing IP. The former deals with protection of artistic + literary works, dramatic works, musical works, photography, computer programs, architecture, etc, the latter deals with protection of patents, trademarks and industrial designs. All these will be explored in later threads.
Intellectual Property Rights (IPRs) exclusively belong to the creators, except in where the work was created with the intention that someone else is to own the rights, or the rights are subsequently transferred to another person (right holder) by mutual agreement. These are;
the right to use IP
the right to license (transfer the rights to use to another person/entity), or to trade in the IP, and
the right to prevent others from making use of IP.
E.g copyright in photographs belongs to the photographer unless agreed that they belong to client. We will explore more on copyright and photography in subsequent threads.
An IP infringement arises where someone exercises a right that belongs to the creator/right holder w/o the creator/right holder's consent. This may be using the IP, reproducing it, or making derivative works of it. So be careful of that "inspiration" you're allegedly channelling.
So now that there has been/might be/will be an infringement of your IP, what can you do?
If the infringement occurs online, the first thing you should do is report the content as a breach of your IP. Many plaforms like Facebook, Twitter, Instagram and Tumblr have buttons for that.
Legally, step 1: issue a "cease and desist" warning against the infringer. Step 2: institute a lawsuit seeking:
1. An injunction to stop the infringement and/or
2. Payment of damages to compensate for the infringement, or
3. Payment of profits unlawfully made from the infringement
IP infringement may also be a criminal offence punishable by criminal sanctions. E.g; an infringement of any of the rights protected under Botswana's Copyright and Neighbouring Rights Act will get you a fine between BWP 20 000 and BWP 500 000, no more than ten years in prison, or both.
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