Jacana Education (Pty) Ltd v Frandsen Publishers (Pty) Ltd
[1998] 1 All SA 123 (A)
Division:
Supreme Court of Appeal
Date:
27 November 1997
Case No:
305/96
Before:
Schutz, Harms, Scott, Zulman and Plewman JJA
Sourced by:
JJF Hefer
Parallel Citation:
1998 (2) SA 965 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
Copyright Copyright Act 98 of 1978 Section 2(1) Only "original" works are eligible for copyright protection.
Onus Copyright infringement Onus is on the applicant to prove that it's work was original and had been unlawfully
reproduced.
Editor's Summary
Two competing maps of the Kruger National Park were the subject of a copyright dispute. The Appellant claimed
copyright in the map as an "artistic" work and in the grid and Rules as "literary works" in terms of section 2(1) of
the Copyright Act 98 of 1978 ("the Act"). The subsection provided that only "original" works were eligible for
copyright protection. The Appellant claimed that the Respondent infringed it's copyright in the map, grid and Rules
and the Respondent's booklet constituted a reproduction of the Appellant's three works. The Respondent opposed
the application on two main grounds: firstly that the subsistence of copyright had not been proved because the
originality requirement in terms of the Act had not been established and secondly copying, an essential requirement
of copyright, had not been proved. The court a quo held that no infringement had been proved. On appeal the Court
was required to examine the various provisions of the Act as well as the facts to establish whether or not the
Appellant had satisfied the onus of proving infringement.
Held Appellant had failed to satisfy the onus of establishing infringement. A study of the details of both maps
showed that one map was not a reproduction of the other. In deciding whether there was reproduction in respect
of the grid, regard had to be had to both similarities and dissimilarities. The Court held that the Appellant had failed
to satisfy the onus that a reproduction of it's works had occurred. The appeal was dismissed with costs.
Note
For Copyright, see LAWSA Reissue (Vol 5(2), paragraphs 1103)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed.)
South Africa
Bosal Afrika (Pty) Ltd v Grapnel (Pty) Ltd and another 1985 (4) SA 882 (C)
Galago Publishers (Pty) Ltd and another v Erasmus 1989 (1) SA 276 (A) F
Laubscher v Vos and others 3 JOC (W) F
Page 124 of [1998] 1 All SA 123 (A)
Australia
Sands & McDougall (Pty) Ltd v Robinson [1917] 23 CLR 49
United Kingdom
Spectravest Inc v Aperknit Ltd [1988] FSR 161
View Parallel Citation
Judgment
SCHUTZ JA
Two competing maps of the Kruger National Park ("the Park"), each with supplemental matter, are the subject of a
copyright dispute. The appellant ("Jacana") was the first in the field. Later it was the unsuccessful applicant for a
final interdict before Van Dijkshorst J in the Transvaal Provincial Division. The respondent is Frandsen Publishers
(Pty) Ltd ("Frandsen").
Jacana's map is printed on both sides of a large foldable sheet.