View Parallel Citation
Section 3 of the Act confers copyright on, inter alia, any literary or musical work of which the author or any one
of the joint authors is a South African citizen or is domiciled or resident in the Republic at the time that the
work is composed. It is not in dispute that the late Ms Fassie and her coauthors in this case qualify under the
section. Although subsections 22(1) a n d 22(5) equate copyright to movable property for the purpose of
dealing with transmission of the rights by way of "assignment, testamentary disposition or operation of law",
there are features of coownership of copyright which differ from coownership of movables. Thus, for
instance, one coowner of copyright does not have the right, without the consent of the other(s), to exploit
the rights comprising his copyright.4 As to the proportions in which individual coauthors are entitled to share
in the proceeds of the copyright, much will depend, in each instance, on the basis on which the coauthors
have agreed to collaborate to produce the work. It is clear from the definition of a "work of joint
authorship",5 however, that in the absence of agreement between the coauthors, the share of each will be
an undivided one. In this regard Copinger and Skone James6 suggest that the circumstances surrounding the
creation of the work will generally be relevant to a decision as to the respective share for which each co
author qualifies. In the absence of clear contrary indications as to the parties' intention, it is suggested, the
coauthors will each be taken to hold an equal, undivided share as "tenants in common". It seems that this is
the position under the Act, but it is not necessary for the purposes of this judgment to investigate this aspect
further. What is clear, and what was not in dispute in argument before us, is that one coauthor cannot
ordinarily claim the whole proceeds of any exploitation of a work of joint authorship. It must follow that, in
invoking the provisions of section 24(1A) of the Act as a basis for quantifying his or her claim for damages, a
coauthor suing individually for damages for infringement or their surrogate under the section will be
restricted to the portion of the "reasonable royalty" to which he or she would have been entitled if the work
had been duly licensed.
[7] The debate about the first exception in the court below appears to have focused on a contention that the
infringement claims were excipiable because the appellant had not joined the joint authors in the action.
Jajbhay J referred to various authorities to the effect that a joint owner should join his coowner(s) in
litigation concerning the joint property. As authority for the proposition that nonjoinder may be raised as a
matter
Page 311 of [2009] 4 All SA 307 (SCA)
for exception, the learned Judge referred to Collin v Toffie 1944 AD 456, and Smith v Conelect 1987 (3) SA 689
(W) [also reported at [1987] 3 All SA 1 (W) Ed]. Apart from noting that Tindall JA in Collin (supra) stated that
a point of nonjoinder may be taken on
View Parallel Citation
exception, but only if it is expressly referred to in the exception,7 it is not necessary to consider whether the
decision by Jajbhay J of the first exception on the basis of joinder was correct in law. An excipient is obliged to
confine his complaint to the stated grounds of his exception. As in Collin, the exceptions here contain no
mention of nonjoinder. They accordingly fell to be decided on the grounds taken, namely that the particulars
did not contain averments which founded the claim for relief. Nor, in arguing the appeals, did counsel for
either party present argument based on the ground of nonjoinder.
[8] Mr Gautschi, who appeared with Mr Smit for the appellant, submitted that, on a fair reading of the particulars
of claim, it was implicit that the plaintiff was only claiming his pro rata share of the "reasonable royalty"
contemplated in section 24(1A). I think that such an interpretation of the particulars would involve more than
just a "fair reading" of the claims it would involve interpolating presumptions and a measure of speculation
into the particulars. On the basis set out in paragraph 7, a plaintiff will not be entitled to the whole of the
"reasonable royalty" accruing from a work of coauthorship unless, at the time of the creation of the work,
there was an agreement between the coauthors that the plaintiff was to be entitled to all the fruits of the
work or, of course, unless the plaintiff had taken cession of the rights of his coauthor(s). The matter is
complicated in a case such as this where a substantial number of the works are alleged to be the product of
more than two authors. The short answer to the question raised by the exception is simply that the
averments in the particulars of claim, read fairly, are silent as to the basis upon which the plaintiff contends
that he is entitled to the "damages" which he claims. As to the claim for "punitive damages", I consider that
such damages would ultimately have to be assessed as a lump sum figure which would have to be shared pro
rata by the coauthors. The defendant in this situation would be exposed to substantial prejudice if he were
to be ordered to pay the plaintiff the total amount of such damages but still remain exposed to a similar claim
by one or more of the other coauthors. The absence of averments relating to the plaintiffs share of the
copyright accordingly has the effect of rendering the claim for "punitive damages" excipiable as well, on the
basis submitted in the exceptions.
The exceptions based on vagueness ("The second exception")
[9] Each defendant relied upon an exception based on the contention that the claim for damages was vague and
embarrassing for want of particularity as to the royalties allegedly received by the defendants from the acts of
infringement. (These will hereinafter be referred to as "the second exception" in each case.) Jajbhay J upheld
these exceptions. In response to the submission on behalf of the plaintiff that section 24(1B) of the Act
expressly provides for an enquiry as to what would be a reasonable royalty