Accesso CC v Allforms (Pty) Ltd and another
 4 All SA 655 (T)
Transvaal Provincial Division
5 October 1998
Le Roux J
M Snyman and D Cloete
. Editor's Summary . Cases Referred to . Judgment .
Competition Unlawful Party which owns copyright in a work cannot compete unlawfully by selling such work.
Page 656 of  4 All SA 655 (T)
Contract Assignment Consensus Order form issued by party containing condition on the reverse thereof that
copyright in material ordered would vest in such party Court finding that no consensus ad idem between the parties and
no valid assignment.
Contract Interpretation of Where ambiguity in contract cannot be resolved by linguistic treatment, a court may have
reference to the surrounding circumstances and, as a last resort, to the negotiations between the parties Party alleging
contract bear onus of proving such evidence.
Copyright Authorship Meaning of "author" Issue of fact.
Copyright Literary work Compilation Scope of Whether material falls within meaning of "compilation" Factors to be
considered and test to be applied Layout of form can also attract copyright.
The Applicant brought an application to restrain the Respondents from infringing its copyright by reproducing a
specified medical account form. The form was annexed to the Applicant's papers as "VH2" and adaptations of the
form were annexures "VH3" and "VH4". The Applicant also sought the delivery of all copies of the infringing form as
well as an order restraining the Respondents from competing unlawfully with the Applicant.
The Respondents raised the following defences: (i) no copyright existed in VH2 to VH4 as they were not original
but were copied from existing medical account forms and that, in any event they were of so commonplace and
mundane a nature that they did not merit the protection afforded by the Copyright Act; (ii) even if copyright did
exist in VH2 to VH4, then such rights vested in the Respondents as the form VH2 was designed by an employee of
the Respondents acting in the course and scope of her employment; and (iii) the Applicant had signed the order
form which contained a standard condition that copyright in a form printed or designed by the first Respondent
would vest in the first Respondent; and this constituted an assignment of the Applicant's copyright.
Held With regard to the alleged assignment, the Court found that there was no consensus ad idem between the
parties when the order form was signed in respect of the passing of ownership in the copyright of the form. The
Court reached this conclusion on the following considerations: (i) There was never any serious intention to be
bound to a possible assignment of future copyright as required by the law of contract, neither could it be said that
the Respondents had any intention of receiving the copyright as the managing director of the Respondents had
formed the view that no copyright existed in a form of that nature. (ii) Even if consensus could be implied by reason
of the caveat subscriptor rule, such consensus would be invalid because there was a justus error and the assignor
would not be bound.
The defence based on assignment could also not succeed because the words constituting the assignment
contained a latent ambiguity which could not be resolved by "linguistic treatment" and resort had to be had to the
surrounding circumstances and, as a last resort, to the negotiations between the parties. The Respondents, who
bore the onus in this regard, had not tendered any such evidence in this regard and their contention that the term
on their order form constituted an assignment had to fail.
Page 657 of  4 All SA 655 (T)
The Court then considered the issue whether the form VH2 qualified as a work to be protected under the
provisions of the Copyright Act. The relevant subcategory in the Act was "written tables and compilations" under
the category "literary work". The issue was whether the form fell within the scope of a "compilation". The Court
considered the dictionary meaning of the word "compile" as well as various court decisions regarding compilations.
The Court held that a court had to exercise a value judgment on whether the material in which copyright was
claimed constituted a "work" (as contemplated in "literary work") or was too trivial to merit protection. Once it had
been decided that a "work" had been created, the further enquiry was whether it was of so commonplace a nature
that it did not attract copyright. This was an objective test but a court had to also consider the consequences of
awarding copyright to a particular work; the difference between a compilation and the layout thereof: apart from
the chosen material for the compilation, the actual arrangement of the material and the layout of the form could