information contained therein was fairly commonplace and readily available to a person who wished to devise a
similar form.
In the case of Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A) the learned Judge of appeal held inter
alia that the test involved in determining whether an alleged work qualifies for copyright protection, involves an
objective test both as regards the originality of the work and the work itself. I understand by this latter remark (at
650DE) that the learned Judge was referring to the question of the triviality of an alleged work in order to
determine whether it can be said that "a work" had been created at all. In regard to compilations, the learned
Judge held as follows (at 652):
"It was argued, seemingly in the alternative, that these pages are a literary work because they consist of a 'compilation'.
What was compiled, according to the submission, was the selection of the days of the week represented on the one page
and the decision to place an abbreviated calendar of three months at the foot of the next page. It seems to me implicit in the
argument that a layout and a compilation are the same, a point of view rejected rather laconically by Lord Denning in
William Hill (Football) Ltd v Ladbroke (Football) Ltd [1980] RPC 539 (CA) at 545, line 5."
The court then found that the subjectmatter in this case was so commonplace that it did not attract copyright. In
the course of the judgment it was further
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held that in assessing whether a work is entitled to the protection of the Copyright Act "it is permissible to have
regard to the consequences of the recognition of copyright in a work of doubtful substance".
A court, therefore, has to exercise a value judgment on whether the material in which copyright is claimed
constitutes a "work" or is too trivial to merit protection. Once it has been decided that a "work" has been created,
the further enquiry is whether it is of so commonplace a nature that it does not attract copyright. This is an
objective test but a court must also consider what the consequences would be of awarding copyright to a particular
work.
A further aspect which must be taken into consideration is the difference between a compilation and the layout
thereof. In the Ladbroke case, Lord Hodson at pp 475476 underlined the distinction as follows:
"A significant feature of the respondents', or indeed of any other, coupon is the method of arrangement which has been
described colloquially as the 'layout'. I prefer to use the word 'arrangement' which is relevant in considering labour involved
in making a compilation. In Lamb v Evans a trades directory consisted of advertisements classified under headings denoting
the different trades, composed by the plaintiff or persons found by him to compose them. The Court of Appeal, confirming
Chitty J, held that the headings were the subject of copyright. Bowen LJ said:
'They are the result of literary labour, both as regards the composition of the headings themselves and their
collocations or concatenation in the book.'
I would not therefore accept the submission of the appellants, which appears to have been accepted by the learned Master
of the Rolls that, except where artistic merit is concerned, no question of 'layout' or, as I preferred to call it 'method of
arrangement' is relevant. Moreover, in the case of the respondents' coupon the selection of headings showing the choice of
bets offered by the respondents is itself shown to have been the result of skill and labour expended on them."
It would therefore appear that quite apart from the chosen material for the compilation, the actual arrangement
thereof and the layout of the form can attract copyright.
In the case of Ocular Sciences Ltd v Aspect Vision Care Ltd (1997) RPC 289 at 428430 Laddie J considered the
meaning of the expression "commonplace". He said the following in this regard:
"Any design which is trite, trivial, commonorgarden, hackneyed or of the type which would excite no peculiar attention in
those of the relevant art is likely to be commonplace. This does not mean that a design made up of features, which,
individually are commonplace is necessarily itself commonplace. A new and exciting design can be produced from the most
trite of ingredients. But to secure protection a combination must itself not be commonplace."
In this regard the evidence by Roy and by Ansie Badenhorst was that many hours were spent in designing the
exact size of the columns, the placement thereof and that much labour and research went into determining the
positioning of the various columns. It appears from the evidence of a witness called by the respondent, one Peter
Charles Middleton, who is a design and printing expert, that he would classify the form VH2 as a fairly complex one
which he
Page 669 of [1998] 4 All SA 655 (T)
said would deserve seven out of a rating of ten. Both Mr Walshe and Ms Barr were adamant, however, that the
design of a form of this nature was a simple matter which would take them a few minutes to do on a spacing chart.
Mr Walshe was of the view that should this type of form be accorded the dignity of copyright, it would be
detrimental to his business and to the business of stationery purveyors in general. Walshe was at pains to point
out that virtually all the headings and information contained in VH2 could be found in previous forms already on the
market. He therefore said that in his view nothing new had been created and that all that had changed was that
the address block had been moved down and the body of the form had been moved up which contained particulars
relating to the service rendered and highlighting the amounts to be paid by the medical aid society and by the
patient. He concedes that the columns inserted by Roy Herselman in regard to medical aid and the benefit scale are
new columns which did not appear as such on previous forms.
In my view his evidence loses sight of the fact that the layout itself can attract copyright. In comparing VH2 and it
successors VH3, VH4 and the alleged infringing form VH6 (which subsequently turned out to be not so) with the