[18] The Berne Convention for the Protection of Literary and Artistic Works does not affect the position.20 It rests
on three basic principles, namely national treatment, automatic protection and independence of protection.
National treatment refers to the principle that works originating in one of the contracting states (that is,
works the author of which is a national of such a state or works which were first published in such a state)
must be given the same protection in each of the other contracting states as the latter grants to the works of
its own nationals. Automatic protection means that copyright protection may not be conditional upon
compliance with any formality. And independence of protection signifies that copyright
Page 457 of [2011] 1 All SA 449 (SCA)
protection is independent of the existence of protection in the country of origin of the work. It should also be
borne in mind that the convention does not form part of our law but merely places international obligations on
governments that have
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acceded to it. This means that the convention is not directly justiciable in our courts.21
[19] This leads ineluctably to the conclusion that IPRs, including copyright, are immovable intangibles and that,
according to the principle accepted in Eilon (supra), local courts do not have jurisdiction in respect of foreign
copyright issues. In addition, the fact that a work was created in this country is beside the point for present
purposes.
[20] The conclusion finds support in Antipodean jurisprudence. In Potter v Broken Hill Pty Company Ltd [1906] HCA
88, the High Court of Australia had occasion to consider whether a patentee could institute action in the
Supreme Court of Victoria by the appellant against a company incorporated and registered in Victoria for the
infringement in New South Wales of a New South Wales patent. In order to determine whether the court in
Victoria had jurisdiction the High Court considered the nature of the patentee's right. The court held that a
patent right was incorporeal personal property and that since a patent monopoly has no effective operation
beyond the territory of the state under whose laws it is granted and exercised "it partakes of the nature of
an immoveable as distinguished from a moveable". Because of this the court held that the forum rei sitae had
exclusive jurisdiction to decide cases relating to patent infringement. The analogy has been extended to
copyright by courts in Australia and New Zealand.22
[21] The fact that copyright exists without registration is without consequence. Prof Austin explained that:
"intellectual property rights exist at the sufferance of the domestic sovereign. With respect to patents and trade
marks, whose existence depends on bureaucratic action, this characterisation is fairly clear. Individual copyrights do
not depend on state action to come into existence. However, individual domestic copyright statutes still define the
circumstances in which copyrights come into existence and the nature and content of authors' rights."23
The first sentence requires some modification. As was mentioned in Lucasfilm (supra),24 "[s]overeignty in any
realistic sense does not come into" registered rights. There is no difference between the grant of a trading
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licence and a patent or trade mark registration. They are all bureaucratic acts by administrative staff in terms
of generally applicable laws.
Page 458 of [2011] 1 All SA 449 (SCA)
Copyright, which does not involve administrative intervention, exists naturally by virtue of local legislation.
[22] Lucasfilm (supra), as mentioned, dealt with exactly the same issue that concerns this court. Although UK
courts had personal jurisdiction, the question was whether they had subjectmatter jurisdiction, i.e., whether
there was a causa jurisdictionis. It is not necessary to traverse all the reasoning which led the court to the
conclusion that a UK court did not have jurisdiction to decide a matter involving the infringement of foreign
copyright. For present purposes, it suffices to point out that the court applied a jurisdiction rule applicable to
immovables, which is for all intents and purposes the same as the rule in Eilon (supra), to copyright. The rule
derives from British South Africa v Companhia de Moçambique [1893] AC 602 in which the House of Lords drew
a distinction between "matters which are transitory and those which are local in nature", holding that English
courts did not have jurisdiction over the latter. 25 In this regard it mentioned that its approach coincided with
the position under Roman law (at 623624).
[23] The rule was affirmed in Hesperides Hotels v Aegean Turkish Holidays [1979] AC 508 where the rule was said to
be that an English court has no jurisdiction to entertain an action for (1) the determination of the title to, or
the right to the possession of, any immovable situate out of England (foreign land); or (2) the recovery of
damages for trespass to such immovable.26
[24] Although Laddie J27 was not prepared to accept that it was correct to describe IPR as immovables and
although the court in Lucasfilm did not in so many terms mention that copyright is an incorporeal immovable,
such a finding is a necessary corollary of the ratio of this judgment in the context of our law, which is a fusion
of Roman and Germanic law.28
[25] The court in Lucasfilm also had regard to practical considerations as to why a local court should not exercise
jurisdiction over foreign copyright.29 In other words, the court was able to justify its conclusion not only on
principle but also on the grounds of convenience and common sense.30 These considerations include the fact