also covers a large number of persons who, in the ordinary sense of the word, are not authors but persons
with financial interests in the end result. For instance, the author of a
View Parallel Citation
computer program is the person who exercised control over its making. One consequently does not have to be
a cynic in order to be sceptical about the philosophical premise.
[13] It is likewise difficult to establish historically any philosophy behind the recognition of State copyright. As Frank
Muir made clear, copyright was initially nothing more than the right to copy and that right related to the right to
print, something the Crown by divine intervention had or approbated. For instance, the Crown had the
prerogative of printing and publishing statutes.5 The Crown also laid special claim to the perpetual copyright in
the Authorised English Translation of the Bible and the Common Book of Prayer. The Copyright Act of 1842 6
made no reference to Crown copyright and it was then open to doubt whether the Crown could have enforced
a perpetual copyright in works compiled by its servants, or whether it could only have claimed the term of
copyright granted by that Act.7 It is probably against that backdrop that section 18 of the British Copyright Act
of 1911, which became law in South Africa by virtue of the 1916 Act,8 was enacted. It provided that where any
work was:
"prepared or published by or under the direction and control of His Majesty or any Government department, the
copyright shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue
for a period of fifty years from the date of first publication of the work."
[14] Pursuant to the wording used in the 1956 UK Copyright Act, the Copyright Act 63 of 1965 provided for vesting
of copyright in the State if the relevant work was "made by or under the direction or control" of the
government or State (section 39). This is the antecedent for the wording used in the present Act. The change
from "prepared" to "made" does not appear to be of any significance.
[15] The general structure of the 1978 Act, excluding detail, is the following. Conferral of copyright and ownership of
copyright do not necessarily coincide. Copyright can be conferred under three alternative circumstances: first,
on a work made by a "qualified" author (section 3); second, if the work is not made by a qualified author, by
first publication (section 4); and third, on a work made by or under the direction or control of the
Page 660 of [2002] 3 All SA 652 (SCA)
State (section 5(2)). The initial ownership of copyright conferred by section 3 or 4 vests in the author unless
the work was made in the course and scope of an employment contract or was commissioned (section 21(1)).
If conferred by section 5, it vests in the State and not in the author (section 21(2)).
[16] SmithKline Beecham argued that it can be deduced from this structure that State copyright under section 5(2)
is only conferred upon works
View Parallel Citation
that are ineligible for copyright under section 3 o r section 4 because the State is not a "qualified person"
(qualified persons must either be individuals or incorporated juristic persons). I disagree. A work falling under
section 3 or 4 and authored by an employee of the State in the course and scope of an employment would,
irrespective of section 5, vest in the State under section 21(1)(d). In addition, as far as ranking is concerned, it
should be noted that a work qualifying for State copyright is not entitled to copyright under either section 3 or
4 (section 5(5)). This implies that one has first to consider whether the work was made under the
circumstances of section 5(2) and only if not, under section 3 or 4 but that does not mean that section 5(2)
should not be interpreted restrictively. Allowing the State without more to reap what it did not sow does not
appear to be in the spirit of our constitutional values.
[17] The UK provisions were the subject of two judgments;9 neither of which is of material assistance in the
present case. Textbook writers generally only touch on the topic. Copyright no doubt vests in the Crown
irrespective of whether the actual author was under a contract of service with the Crown.10 The provision is
broad and may in certain circumstances apply to works made by a person under contract with the State.11
Some argue that works made by State employees in the course of their duties are made under the "control" of
the State and that works made by independent contractors are made under the "direction" of the State.12
Whether a commissioned work falls under either appears to be open to debate.13
[18] It is not that clear whether the phrase "by the State" was intended to cover works of organs of State only or
also the works of employees. All the statutes since 1911, when dealing with employees generally, used the
hackneyed phrase "in the course of the author's employment" (or something similar). Why a different wording
should have been used in relation to State employees is unclear. It is fortunately not necessary to consider the
scope of that expression because Biotech, rightly, did not submit that the work was made "by" the MCC. Smith
Kline Beecham, however, argued that the use of the preposition indicated that State copyright could only arise
where a work is made "for or on behalf of" the State. The argument loses sight of the fact that the "by" does
not govern either "direction" or "control". They are governed by the preposition "under". Clearly, an important
pointer in assessing whether State copyright vests or
Page 661 of [2002] 3 All SA 652 (SCA)
not may be whether the work was made for or on behalf of the State but that is not the conclusive indicator.
[19] There was some argument on whether the work was made "under the direction" of the State. In my judgment