Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd
 4 All SA 67 (SCA)
Supreme Court of Appeal
6 September 2002
Harms, Schutz, Scott, Cameron JJA and Heher AJA
2003 (1) SA 31 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
 Copyright Infringement Copying Test Twostage inquiry Whether there is the necessary degree of objective
similarity between the original work and the alleged infringement Whether the similarity is causally connected to the
original work Causal connection may be either direct or indirect [see para 4 of the judgment].
 Copyright Infringement Exception to author's exclusive right to reproduce work Section 15(3A)(a) Copyright Act
98 of 1978 Copyright in an artistic work of which threedimensional reproductions are made to the public with the
consent of copyright owner shall not be infringed, if a person reproduces the threedimensional adaptations, provided the
reproductions have a utilitarian purpose and are made by an industrial process.
 Copyright Protection Section 2(1)(e) Copyright Act 98 of 1978 Copyright protection is accorded to original
artistic works Includes drawings of a technical nature Copyright vests in the author Has the exclusive right of
reproducing the work in any manner or form including the right to convert the drawings into threedimensional forms.
The Appellant ("Dexion") was the owner of the copyright in four technical drawings relating to a Speedlock racking
system. The Respondent ("Universal") produced the Speedlock system in terms of a sublicence from Dexion's
licencee ("Brazier"). When Universal was unable to obtain a direct licence from Dexion, it produced its own racking
system: "Unirack". Dexion maintained that the Unirack design was a copy of its Speedlock system and that
Universal infringed the copyright it held over Speedlock. Goldblatt J, in the court a quo found in favour of Universal.
Dexion appealed against that finding.
Held To place the matter in context, the Court referred to the relevant sections of the Copyright Act 98 of 1978
("the Act"). Section 2(1)(e) of the Act afforded protection to original artistic works. Included in the definition of
"artistic works" are technical drawings. Copyright in artistic works vest in the author and include the exclusive right
to reproduce the work in any manner or form including the right to convert the drawings into a threedimensional
form. An exception to this right was set out in section 15(3A)(a) of the Act. This section provided that the copyright
in an artistic work, which had been reproduced in three dimensional form and made available to the public, would
not be infringed provided that it had "a utilitarian purpose and [was] made by an industrial process".
Universal accepted Dexion's copyright in the drawings and the central issue was limited to whether Universal had
copied Dexion's drawings. The Court pointed out that in order to prove Dexion's allegation of "copying", a two
stage enquiry had to be conducted. Firstly, it had to be determined whether a degree of similarity existed between
the original work and the alleged copy.
Page 68 of  4 All SA 67 (SCA)
Secondly, it had to be shown that the similarity was causally connected to the original work; such causal connection
being either direct or indirect.
On an application of these principles, the Court noted that the owner of a copyright could make three
dimensional versions of his work available to the public. However, third parties could not thereafter reproduce
threedimensional copies by reference to the drawings, thus the drawings could not be used at all, whether directly
The Court's main area of focus was on the second part of the inquiry: the causal connection. Dexion argued that
Universal had directly infringed its copyright, but could not establish this, which lead to Dexion relying solely on its
alternative argument involving indirect infringement. Dexion alleged that Universal's tools were derived from its own
and that, by being so derived, this amounted to an indirect infringement of its drawings. In response, Universal
relied upon section 15(3A)(a) of the Act.
In the determination of the issue, the Court examined evidence adduced by expert witnesses from both sides.
Upon a comparative analysis of both the Speedlock and Unirack systems, the Court found that there were a number
of differences in the respective designs. There was no explanatory evidence led to establish that the Universal
tooling was a replica of Dexion's. Even in crossexamination of the expert witness for Universal, counsel for Dexion
had never put to him that Universal had copied Dexion tooling. This evidence therefore remained unchallenged.
In addition to its copyright claim, Dexion also relied upon a contractual claim. Essentially, Dexion submitted that it