applicant in selling it to its Mass package customers hence the claim based on unlawful competition.
The respondents oppose the relief prayed for by the applicant on a number of factual and legal grounds. Their
chief deponent is David Gordon Walshe ("Walshe") who is a director of both respondents. He explains the formation
and present position of the respondent companies in his affidavit since the initial formation of Allforms (Pty) Ltd in
1982 till the present day. It appears that various changes of names occurred as well as an amalgamation with
another company, Formcraft (Pty) Ltd. Eventually, the Formax Paper Group (Pty) Ltd was formed and acquired all
the assets and liabilities of Allforms (Pty) Ltd. The latter then became dormant while the former ("Formax") is the
active entity. Formax, however, still uses the trading name or style "Allforms" and conducts business as a designer
and distributor of forms of all kinds for business purposes. It creates these forms to the specifications of clients, but
does not print the forms themselves. The actual printing is subcontracted to third parties.
The respondents raise two main defences to the applicant's claims, viz: Firstly that no copyright exists in VH2 to
VH4 as they are not original but were copied from existing medical account forms, and that in any event they are of
so commonplace and mundane a nature that they do not merit the protection afforded by the Copyright Act. In this
regard Barr has stated under oath that Roy never handed her an accurate drawing of VH2 but merely a rough
sketch which was attached to Walshe's affidavit as DGW3. This rough sketch was drawn in the course of giving
printing instructions to her and consists of twelve vertical columns drawn on a blank paper containing twelve
headings in the Afrikaans and English languages. Both Walshe and Barr state that DGW3 does not constitute a
"work" for purposes of attracting copyright. I may say that neither Vernon nor Roy claims copyright in DGW3 and
says that this was simply one of many sketches drawn in the course of developing the accurate sketch which
became VH2. They also deny that this sketch was ever handed to Barr and suggest that she must have taken it off
Roy's table at a certain stage. Secondly, that in any event even if it is held that copyright does exist in VH2 to VH4,
then such rights vest in the respondents as the form was designed by Barr acting in the course and scope of her
employment with respondents.
A third defence is now raised, based on an order form of the respondents (DGW5) signed by Vernon for 100 000
forms to be supplied to the applicant, dated 25 October 1989. This order was for the abortive VH2 form. Above his
signature on the order form the following words appear:
Page 661 of [1998] 4 All SA 655 (T)
"Approval of order/quotation subject to the standard trading conditions displayed on reverse."
On the back of the form 15 socalled "standard trading conditions" are listed. Condition no 15 reads:
"Copyright: when Allforms prints or designs a form copyright will vest in Allforms ."
The respondents now submit that whatever the outcome of the dispute regarding the existence of copyright or the
authorship of the form may be, Accesso has assigned its copyright to Allforms through Vernon Herselman and his
signature on the order form which complies with the requirements of section 22(3) of the Copyright Act 98 of 1978.
This subsection reads:
"(3) No assignment of copyright and no exclusive licence to do an act which is subject to copyright shall have effect
unless it is in writing signed by or on behalf of the assignor, the licenser or, in the case of an exclusive sublicence, the
exclusive sublicenser, as the case may be."
The signature by Vernon of the order form is said to constitute a written assignment. According to the submission
by counsel for the respondents, the fact that applicant or Vernon was not the owner of the copyright at the time of
signature of the order form is no obstacle to the validity thereof as section 22(5) of the Act applies. This section
reads:
"(5) An assignment, licence or testamentary disposition may be granted or made in respect of the copyright in a future
work, or the copyright in an existing work in which copyright does not subsist but will come into being in the future, and the
future copyright in any such work shall be transmissible as movable property."
When this point was raised in the answering affidavits by the respondents, Vernon replied that he did not read the
conditions when signing the order form nor was his attention drawn to it. Any copyright subsisting at the time
belonged to his brother Roy and his company, Mass CC, and he (Vernon) had no intention of "signing away" his
brother's copyright.
In their answering affidavits Barr, supported by Walshe, gave details of how she set about designing VH2. She
says that during November 1989, Roy presented her with a rough sketch (DGW3) and requested her to design a
medical account form for Mass CC. This was not a difficult task. She used the basic format for business forms
commonly used at the time and added those headings required by the medical aid industry. She knew that most
medical practices used the Epson FX80 printer which could accommodate 8.5 inches of print. At 16 characters per
inch this would allow for 136 characters across the page. It turned out, however, that medical practices served by
Roy generally could not utilise more than 8 inch forms in their printers and the total spread had to be reduced to
128 characters. Her form bore no resemblance to Roy's rough sketch (DGW3) which was at most his instructions in
graphic form. The design of the form required almost no skill as examples of medical account forms were readily
available and she simply copied these onto a spacing chart in producing VH2 and adapted it to Roy's needs as
reflected on DGW3. If the negligible amount of skill required to produce VH2 does attract copyright, then she claims
the authorship thereof. Roy only effected slight cosmetic changes to the proofs submitted by Barr, according to her
affidavit.
Page 662 of [1998] 4 All SA 655 (T)
In his replying affidavit on behalf of the applicant Vernon states that a factual dispute concerning the authorship