attract copyright.
Applying these principles to the form VH2, the Court found that the form was far more informative and intelligible
to a layman than its predecessors which were in common use prior to the creation of the VH2. Furthermore, the
form had a separate existence apart from the computer package in which it was created. The consequence of
awarding copyright to the form was not to preclude the Respondents from carrying on business or to preclude
similar businesses from distributing forms.
The Court reiterated the point that a work could be original even if the author had drawn on knowledge common
to himself and others or had used already existing material (without slavishly copying such material) provided he
had spent skill, labour and judgment on it. The Act required a low standard of originality.
The Court concluded that the form VH2 qualified as a compilation for the purposes of the Act and merited
protection under the Act.
On the issue of the authorship of the form VH2, the Court considered the definition of "author" in the Act (ie "the
person who first makes or creates the work"). Whether or not a person was the author of a particular work was a
question of fact: a person who reduced the work into its material form in a purely mechanical activity, eg a
shorthand typist, was not the author but rather the agent of the author. In the instant case, both the Applicant and
the Respondents had tendered evidence to show that they were the "author". The Court preferred the evidence of
the Respondents to that of the Applicant. It found that the Respondents' employee was the author and that
ownership of the copyright in form VH2 vested in the Respondents. The Respondents could not be said to be
competing unlawfully with the Applicant by selling the forms in which they possessed copyright and the argument
regarding unfair competition could not succeed.
With regard to costs, the Court found that, as both parties had achieved a measure of success, each party
should be ordered to pay its own costs.
The application was accordingly dismissed, each party to pay its own costs.
Notes
For Competition, see LAWSA Reissue (Vol 2, paragraphs 376412)
For Contract, see LAWSA Reissue (Vol 5(1), paragraphs 124262)
For Copyright, see LAWSA Reissue (Vol 5(2), paragraphs 1103)
Page 658 of [1998] 4 All SA 655 (T)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed.)
South Africa
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and others 1981 (2) SA 173 (T)
Bloom v The American Swiss Watch Company 1915 AD 100
Comcorp (Pty) Ltd v Quipmore CC, case no 7014/96, unreported, (D)
Conradie v Rossouw 1919 AD 279
Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A)
Du Toit v Atkinson's Motors Bpk 1985 (2) SA 893 (A)
Fax Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D)
Frocks Ltd v Dent and Goodwin (Pty) Ltd 1950 (2) SA 717 (C)
George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)
Kalamazoo Division (Pty) Ltd v Gay and others 1978 (2) SA 184 (C) F
Pan African Engineers (Pty) Ltd v Hydro Tube (Pty) Ltd and another 1972 (1) SA 470 (W)
Preformed Line Products (SA) (Pty) Ltd v Hardware Assemblies (Pty) Ltd 202 JOC (N)
Schultz v Butt 1986 (3) SA 667 (A)
Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A)
United Kingdom
Donoghue v Allied Newspapers 1938 Ch 106
Hollinrake v Truswell (1894) 3 Ch 420
Ladbroke (Football) Ltd v William Hill (Football) Ltd 1964 1 AER 465 (HL) F
Ocular Sciences Ltd v Aspect Vision Care Ltd (1997) RPC 289
University of London Press Ltd v University Tutorial Press Ltd 1916 (2) Ch 608