substantially similar result by independent work without copying. If he does copy, the question whether he has
copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test
may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of
ordinary words or wellknown data. So it may sometimes be a convenient short cut to ask whether the part taken
could by itself be the subject of copyright. But, in my view, that is only a short cut, and the more correct approach
is first to determine whether the plaintiff's work as a whole is "original" and protected by copyright, and then to
inquire whether the part taken by the defendant is substantial. A wrong result can easily be reached if one begins
by dissecting the plaintiff's work and asking, could section A be the subject of copyright if it stood by itself, could
section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments
taken separately would not be copyright, therefore the whole cannot be. Indeed, it has often been recognised that
if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be
an important or even decisive element in deciding whether the work as a whole is protected by copyright."
[10] STATE COPYRIGHT: The second issue, namely whether the copyright in the insert vests in the State, depends
upon an interpretation of section 5(2) of the Act. The whole of section 5 may be quoted for contextual reasons:
"Copyright in relation to the state and certain international organizations
(1) This Act shall bind the state.
(2) Copyright shall be conferred by this section on every work which is eligible for copyright and which is made by
or under the direction or control of the state or such international organizations as may be prescribed.
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(3) Copyright conferred by this section on a literary or musical work or an artistic work, other than a photograph,
shall subsist for fifty years from the end of the year in which the work is first published.
(4) Copyright conferred by this section on a cinematograph film, photograph, sound recording, broadcast,
programmecarrying signal, published edition or computer program shall be subject to the same term of
copyright provided for in section 3 for a similar work.
(5) Sections 3 and 4 shall not confer copyright on works with reference to which this section applies.
(6) Copyright which vests in the state shall for administrative purposes be deemed to vest in such officer in the
public service as may be designated by the State President by proclamation in the Gazette."
View Parallel Citation
[11] The crisp issue is whether the insert was "made by or under the direction or control of the State", it being
accepted that the MCC is an organ of State. SmithKline Beecham in an argument that found favour with Swart
J relied for purposes of interpretation upon a philosophy allegedly underlying the Act, namely that it seeks to
create a system whereby the creator of an original work is afforded a qualified exclusive right to compensate
him for the effort, creativity and talent expended and to act as an incentive for the creation of further and
better works. It is convenient to give some background in order to assess the validity of the argument. In this
regard Frank Muir's irreverent social history4 provides a useful introduction.
"The biggest difficulty facing a wouldbe professional author at the opening of the eighteenth century was his lack
of legal right to royalties on the sale of his books. Under the Romans, and well into the medieval period, the
copyright in a manuscript belonged to whoever owned the piece of material it was written upon; it was a simple
matter of owning a lump of tangible property. When printing came to England the government made haste to
censor it by giving the Stationers' Company a monopoly on publishing, thus making the Stationers' Company the
holder of all copyrights.
Pressure built up during the latter part of the seventeenth century against the Stationers' Company monopoly, and
strong pleas were made to successive governments to end it. The campaign eventually succeeded and in 1709 an
Act, Statute 8 Anne, c. 19, was passed, the first in the world to give an author a right to his own property.
The booksellers who were behind the Act had no thought of bringing prosperity to the trade of author; it was a
monopolybreaking move for the benefit of the bookselling trade and authors were merely the excuse for it. By
the wording of the Act an author owned the copyright of his work, but the action of having it published gave the
bookseller fourteen years exclusive rights in the work, after which the rights were supposed to revert to the
author. In effect this meant that once the booksellers had paid the author a few guineas for the copyright, they
could exploit the property, or barter it among themselves, for a period of fourteen years without necessarily
paying anything more to the author:
What Authors lose, their Booksellers have won,
So Pimps grow rich, while Gallants are undone.
Alexander Pope (16881744)."
[12] The present Act, in its original form, attempted to be kinder to authors. The concept of "copyright" was
replaced with an author's right, the
Page 659 of [2002] 3 All SA 652 (SCA)
"ownership" of which vested principally in the author. In this and other regards the object was to move in the
direction of continental law where the emphasis is on the rights (moral and other) of the author and not on the
economic rights of employers and entrepreneurs. The good intentions did not last and hardly a year had
passed when the Legislature (by amending section 21) reverted, as far as ownership was concerned, to the
AngloAmerican model where commercial rights tend to reign supreme. The definition of "author" in section 1