had contracted with Brazier to sell the Speedlock system in South Africa. In terms of the arrangement, Brazier could,
with Dexion's approval, appoint contract manufacturers and distributors. Dexion sought to enforce an obligation
created in terms of the contract between Brazier and Universal. The Court rejected this claim, finding that the clause
in the sublicence governed the relationship between Universal and Brazier and benefitted Brazier only. Dexion was
not a party to this contract.
Dexion's claims having been rejected by the Court, the appeal was dismissed with costs.
Notes
For Copyright see LAWSA Reissue (vol 5(2), paras 1 98).
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)
South Africa
Galago Publishers (Pty) Ltd and another v Erasmus 1989 (1) SA 276 (A)
Kambrook Distributing v Haz Products and others, unreported (W) D
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd 1998 (2) SA 965 (SCA) D
President of the Republic of South Africa and others v South African Rugby Football Union and others 1999 (10) BCLR
1059 (2000 (1) SA 1) (CC) F
Super Safes (Pty) Ltd and others v Voulgarides and others 1975 (2) SA 783 (W)
Page 69 of [2002] 4 All SA 67 (SCA)
New Zealand
Frank M Winstone (Merchants) Ltd v Plix Products Ltd 5 IPR 156 (CA)
United Kingdom
Francis Day & Hunter Ltd and another v Bron and another [1963] Ch 587 (CA)
Solar Thomson Engineering Co Ltd v Barton [1977] RPC 537 (CA)
View Parallel Citation
Judgment
HARMS JA:
[1]
This judgment is about copyright infringement. The appellant ('Dexion') is the owner of the copyright in four
technical drawings. They reflect different parts of Dexion's Speedlock racking system. A racking system consists
of uprights or legs bolted to footplates. The uprights are connected to each other by means of horizontal
beams. Diagonal bracing elements between beams provide the necessary stability of the racks. Pallets or
shelves can then be placed on the beams in order to store goods. The advantage of the Speedlock system is
that it is an interlocking system and attaching the beams to the uprights does not require bolting or welding. At
the extremities of each beam there are beam end connectors with a number of protruding hooks and these fit
into coffin shaped holes in the uprights during erection of the racks.
[2]
The respondent ("Universal") produced the Speedlock system in terms of a sublicence from Dexion's licensee,
to whom I shall refer as "Brazier", until the termination of the sublicence during 1993. Universal at the time
sought a direct licence from Dexion and when it transpired that it would not get one, it decided on a new
business strategy of producing a racking system that would be interchangeable and compatible with the
Speedlock system. Legal advice was obtained and Universal was informed of the copyright implications and,
particularly, the right to design a system by way of reverse engineering. Universal returned all drawings in its
possession, instructed its regular toolmaker to manufacture new tools, thereafter returned the Dexion tooling
to Brazier and proceeded to market its "new" racking system as the Unirack system.
[3]
Copyright protection is accorded to original artistic works (Copyright Act 98 of 1978 section 2(1)(e)). Drawings,
including drawings of a technical nature, irrespective of their artistic quality, are considered to be artistic works
(section 1 sv "artistic work" and "drawing"). Copyright in an artistic work vests in the author the exclusive right
of "reproducing the work in any manner or form" (section 7(a)) and this includes the right to convert the
drawing into a threedimensional form (section 1 sv "reproduction" paragraph (b)). An exception exists in
relation to this latter right:
"The copyright in an artistic work of which threedimensional reproductions were made available, whether inside or
outside the Republic, to the public by or with the consent of the copyright owner (hereinafter referred to as
authorized reproductions), shall not be infringed if any person without the consent of the owner makes or makes
available to the public threedimensional reproductions or adaptations of the authorized reproductions, provided
the authorized reproductions primarily have a utilitarian purpose and are made by an industrial process."