Copyright Issue

1. I have been in the Batik industry for many years and have done some extensive research on colouring and wax and gum resist and have developed a formula for a certain mixture of resist that I would like to claim as my own. How should I proceed and what steps I should take to copyright my formula?

Answered by Geetha, Kass International

Copyright is not the right protection because it does not protect formula, but instead, it protects the creative works of artists, painters and the like. In your industry, batik print motifs and designs, or batik products such as stamps, paintings, neck-ties, scarves, cards – can qualify for copyright protection.

To protect your formula, what you should be looking at is patent protection. Patent is an exclusive right granted by the government to the owner of an invention for a period of 20 years. It is a lawful way to claim ownership of your unique formula. With patent protection, it prevents any third party from making, selling, using and distributing your formula as a product for commercial gains without your permission, and therefore, you can enjoy the liberty to decide on the ways in which you wish to reap profits from your unique formula.

To file for a patent application, your unique formula has to meet three requirements: it is new, has an inventive step and is industrially applicable. Say for example, your unique formula has a certain combination of ingredients (i.e. beeswax or dyes) or processes (i.e. heating or mixing at a particular temperature) which can overcome an existing problem of colour resist in the batik industry, and, assuming that no one has ever invented this before – this meets the first requirement of being new. Inventive step means that your unique formula must not be obvious to the people skilled in the batik industry. For industrial applicability, your unique formula must be capable of being produced and used on an industrial scale. If your unique formula meets all of the above requirements, you stand a good chance of getting your unique formula patented.

Patent rights are territorial, meaning that the protection can only be enforced in the country where the patent is granted; therefore, you might also want to consider filing for foreign applications outside Malaysia. Why? Think of it from a global business perspective – suppose your unique formula is a huge success in the local arena, the likelihood that it would be replicated in overseas markets to achieve similar commercial success would be high. Similarly, there may also be great demand for the product for its problem-solving benefits in the batik industry. When a patent is filed in Malaysia, everyone in Malaysia is prohibited from making, using, selling or distributing the patented product, while those in other countries may be free to make, use, sell or distribute it in their respective countries. Because of this, you may want to file foreign applications for your unique formula preemptively, not only in your competitors’ countries to prevent them from encroaching on your rights, but also in countries where there is a big potential market for the batik industry i.e. Indonesia, Thailand, Singapore, etc.

Your unique formula can also be protected under another type of protection called trade secrets. Trade secrets are confidential or classified information not generally known or easily obtainable which gives an enterprise a competitive edge over competitors. A trade secret is not a secret anymore if it is revealed to the public, and, when that happens, the protection is lost forever. In relation to your unique formulation, you can protect the information by having anyone (i.e. employees) who has direct or indirect contact with the trade secret agree not to disclose the information by entering into a written contract and signing non-disclosure agreements.

I hope the above has been beneficial to you. As usual, please note that this is based only on the limited information given and is not to be construed as professional legal advice.

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