[71] The two main witnesses for the plaintiff herein, Mr Blanckensee and Prof Schloss had valid contracts of service
with the plaintiff which were never disputed by the defendant.
Page 482 of [2014] 2 All SA 461 (GJ)
[72] Where only part of a work is claimed for copyright the law does not disallow such a claim. Originality still
remains the key concept. The claimant must, however, clearly identify that part of the work for which the
copyright is claimed.30
Reproduction of work with copyright attaching
[73] Copyright is infringed by anybody who, not being the owner or not holding a licence from the owner, does or
causes another to do in the RSA any of the acts restricted to the owner31 or utilises same without consent or
authority. In the case of a literary work, such restricted acts include the reproduction of the work in any
form,32 the publication of the work if hitherto unpublished33 and the making of an adaptation of the work.
[74] The word, "reproduction" as used in the Act includes ". . . a reproduction made from a reproduction of the
work . . . ".34 It, therefore, makes no difference in an action for infringement of copyright whether the work
reproduced is an original or a copy thereof. A copy of either is a reproduction for purposes of infringement.
[75] There is a fundamental difference between "use" and "reproduction". The former is not an infringement of
copyright, whereas the latter is. This distinction was well illustrated in Copinger and Skone James in their
work, Copyright35 as follows:
"A person may therefore use a work such as a directory to contact the listed names as many times as he wishes. If
however, in the course of doing so or afterwards he writes down or makes some other record of the substantial
amount of the information obtained from the plaintiff's work, then he is liable to infringe."36
[76] The issue relating to computers need to be clarified. When a computer has been used to produce the work in
question, our law draws an important distinction between the work as being "computer generated" or
"computer aided" or "computer assisted".37 A work is regarded as "computer generated" if:
". . . it was created by a computer in circumstances where there is no human author of the work. If there is a human
author, the work is computer assisted and not computer generated."38
Page 483 of [2014] 2 All SA 461 (GJ)
A computer assisted work is one where the work is:
". . . made by an individual using a computer as a tool or instrument. In a computer assisted work, the computer in
essence plays the role of a sophisticated writing or drawing instrument.39
[77] Reproduction or copying for purposes of section 23 is satisfied whenever there has been a substantial
copying of the work in question.40 By "substantial" is meant that:
". . . quality not quantity takes the test. It has repeatedly been held that 'substantial' in this context or connection
relates much more to the quality of what has been taken than to the quantity . . . Thus, if so much is taken that the
value of the original is sensibly diminished, or that the labours of the original author are substantially, and to an
injurious extent, appropriated by another, that is sufficient, in law, to constitute a piracy pro tanto. In deciding
questions of this sort, regard must be had to the nature and objects of the selection mode, the quantity and value of
the materials used, and the degree to which the use may prejudice the sale, or diminish the profits, direct or indirect,
or supersede the objects of the original work. It may be relevant to consider whether there has been an animus
furandi on the part of the defendant in the sense of an intention on the part of the defendant to take for the purposes
of saving himself labour. Many mixed ingredients enter into the consideration of such questions. In short, the question
of substantiality is a matter of degree in each case and will be considered having regard to the circumstances.
Generally, it is not useful to refer the particular decisions as to the quantity taken."41
[78] The authors of the latest issue of Copyright put it as follows at 728:
"The test (for 'substantial part') has been put in a number of similar ways. Has the infringer incorporated a substantial
part of the independent skill, labour, etc contributed by the original author in creating the copyright work? Has there
been a substantial appropriation of the independent labours of the author? Has there been an appropriation of part of
the work on which a substantial part of the author's skill and labour was expended? Has there been an overborrowing
of the skill, labour and judgment which went into the making of the claimant's work? Has the defendant made a
substantial use of those features of the claimant's work in which copyright subsists?"
[79] In the 16th edition of Copyright at 730, page 441 the authors continue to expatiate on the meaning of the
expression "substantial" copying as follows:
"The quality or importance of what has been taken is much more important than the quantity. The issue thus depends
therefore not just on the physical amount taken, but on its substantial significance or importance to the copyright
work, so that the quality, or importance, of the part is frequently more significant than the proportion which the
borrowed part bears to the whole . . . Quality and importance must therefore be understood in terms of the features
of the work which made it an original in the first place. It follows that the quality relevant for the purposes of
substantiality in the case of a literary work refers to the originality of that which was been copied."
Page 484 of [2014] 2 All SA 461 (GJ)
[80] As confirmed in several judgments,42 in general terms, what is worth copying is prima facie worth protecting.
In the Payen Components case (supra) the Appellate Division, as it then was, concluded that copyright existed
in the plaintiff's "Payen Code" which was a code consisting of five digits, the first two whereof being letters