Ltd v Du Plessis 1955 (3) SA 447 (AD)], and resort must be had to the surrounding circumstances and, as a last
resort, to the negotiations between the parties. No such evidence was tendered by the respondents who bore the
onus in this regard and their contention that this term constituted an assignment must therefore fail. The point
relating to assignment is accordingly dismissed.
Does copyright exist in the form?
The next question to be considered is whether the medical account form VH2 qualifies as a work to be protected
under the provisions of the Copyright Act, 1978.
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The Act, in section 2 thereof, lists a number of categories which are eligible for copyright, but it was common cause
between the parties that the only category which can apply in the present case is that of a "literary work". The
definition [in section 1(xxvii)] of a literary work includes the following subcategories of works:
(a)
novels, stories and poetical works;
(b)
dramatic works, stage directions, cinematograph films scenarios and broadcasting scripts;
(c)
textbooks, treatises, histories, biographies, essays and articles;
(d)
encyclopaedias and dictionaries;
(e)
letters, reports and memoranda;
(f)
lectures, addresses and sermons; and
(g)
written tables and compilations.
Again it was common cause that only the lastmentioned subcategory can apply in the present instance.
What then is meant by "compilation"? The dictionary meaning of "compile" is
"(1)
to collect and put together (materials), so as to form a treatise;
(2)
to construct (a written or printed work) out of materials collected from various sources" (Oxford English Dictionary sv
"compile").
In a leading case in the United Kingdom in recent years, viz Ladbroke (Football) Ltd v William Hill (Football) Ltd 1964 1
AER 465 (HL) the following descriptions and characteristics of compilations were described by the various judges
involved in the judgment in that case:
". [the] putting together in writing (or print) of a number of individual items or components" (Lord Evershed at p 471FG).
In the same case (at p 469I) Lord Reid said:
"It is not disputed that, as regards compilation, originality is a matter of degree depending on the amount of skill, judgment
or labour that has been involved in making the compilation."
Lord Hodson in the same case (at p 475FG) expressed it as follows:
"The coupons are compilations, being derived from various sources . Thus commonplace matter put together or arranged
without the exercise of more than negligible work, labour and skill in making the selection, will not be entitled to copyright."
Lord Pearce, in the same judgment (at pp 479480), had the following to say about the subject:
"The words 'literary work' include a compilation. They are used to describe work which is expressed in print or writing
irrespective of whether it has any excellence of quality or style, or style of writing [Petersen J in University of London Press
Ltd v University Tutorial Press Ltd 1916 (2) Ch 608]. The word 'original' does not demand original or inventive thought, but
only that the work should not be copied and should originate from the author (ibid). In deciding therefore whether a work in
the nature of a compilation is original, it is wrong to start by considering individual parts of it apart from the whole,
Page 667 of [1998] 4 All SA 655 (T)
as the appellants in their argument sought to do. For many compilations have nothing original in their parts, yet the sum
total of the compilation may be original . In such cases the courts have looked to see whether the compilation of the
unoriginal material called for work or skill or expense. If it did, it is entitled to be considered original and to be protected
against those who wish to steal the fruits of the work or skill or expense by copying it without taking the trouble to compile it
themselves. So, the protection given by such copyright is in no sense a monopoly, for it is open to a rival to produce the
same result if he chooses to evolve it by his own labours [see Kelly v Morris (1866) LR I E 697, 701]."
De Kock J in the case of Kalamazoo Division (Pty) Ltd v Gay and others 1978 (2) SA 184 (C) at 190, sets out the law
applicable to compilations succinctly as follows:
"It is a basic principle that a literary work (which includes compilations such as the applicant's forms) must be original in
character to be the subject of copyright. Originality in this regard refers to original skill or labour in execution, not to original
thought or expression of thought. What is required is not that the expression of thought must be in an original or novel form,
but that the work must emanate from the author himself and not be copied from another work. The question that then arises
is what degree of labour or skill will suffice to create copyright in an original work. It is clear that it must be shown that some
labour, skill or judgment has been brought to bear on the work before copyright can be claimed successfully for such work.
The amount of such labour, skill or judgment is a question of fact and degree in every case."
In that case the court held that copyright did exist in three business forms respectively referred to as "employee's
earnings record, a time and wage register, and pay advice slip". The reason given was that considerable time, skill
and labour had been expended by the author during the creation of these forms, despite the fact that the