Wednesday, 7 August 2013
No IP in ideas: Makate v Vodacom
Over the last two days there have been media reports (here, here and here) about a matter between a former Vodacom employee, Nkosana Makate, and Vodacom in which Makate is claiming compensation for having created the popular 'please call me' service concept (see here for a description of this service). According to these reports, Makate claims that he came up with this idea in 2000 and that Vodacom acknowledged his creation of the idea (via email sent to all staff in March 2001) and promised to pay him for it. He was not paid and first sent letters of demand to Vodacom in 2007 and instituted litigation in 2008 (It is thus possible that Makate's claim has prescribed). From an IP perspective, this case is interesting because the please call me service concept could have been protected by IP and doing so would have strengthened Makate's position.
Makate did not maintain his concept as a trade secret. If he had entered into a written agreement for payment in return for the disclosure his idea and secured this disclosure to Vodacom with a non-disclosure agreement, Makate would be in a better place. As it is, he has no option but to found his case on an oral contractual undertaking by Vodacom to pay him for his idea, which Vodacom is strenuously denying.
If Makate did not record his idea in some fixed or material form he will not have copyright in it as copyright only protects the expression of ideas ( for other eligibility requirements, see the South African Institute of Intellectual Property Law's primer on copyright here). Even if he did express his idea in some material form and thus has copyright in it, he would have to prove that Vodacom copied a substantial portion of that expression to succeed in a claim of copyright infringement. It does not appear that he is making any such claim.
Makate did not obtain a patent for his invention. It is likely that at the time it was conceptualised, this service met the patentability criteria of novelty, inventive step and industrial application. Indeed, competing cell-phone company MTN seems to have filed for a patent over the concept in 2001 (see report here). MTN also offers a similar service known as MTN callback (described here).
It will be interesting to see how this matter unfolds. In the interim if any Afro-IP readers have any thoughts on the IP protection of cell-phone service offerings like 'please call me' or any further information on this matter please share these.