previous forms of which a number have been attached to the papers of the respondents, I have formed the clear
impression that the VH2 group is far more informative and intelligible to a layman than its predecessors, such as the
Medsolve and Elite forms which were in common use prior to the creation of VH2. It has the advantage of printing all
the information in a single line and not in separate little boxes spread all over the form. The headings are clear and
precise and the amount owing by the recipient stands out clearly.
I considered the question whether this might not be a case falling within the parameter of Hollinrake v Truswell
(1894) 3 Ch 420. In that case the plaintiff claimed copyright in a cardboard pattern sleeve containing upon it various
figures and descriptive words for adapting it to sleeves of any dimensions. It was held that these words and
instructions were not capable of copyright within the meaning of the then Copyright Act as it was part of the
measuring apparatus and had no separate existence. In other words, it was a portion of a tool or a machine which
was not separately published and could not stand on its own. The thought occurred to me that as form VH2 was
inseparably bound to the Mass package and the computer programme, whether it might not be said that it did not
have an existence of its own. On further reflection I have come to the conclusion, however, that the facts in that
case differ completely from those in the present matter and that form VH2 does have a separate existence apart
from the computer printout. The principle enunciated in that case, therefore, is not applicable here.
What are the consequences of awarding copyright to this form? Would it preclude the respondent from carrying
on its business and similar businesses from distributing forms? On reflection I do not think so as the respondent is
also a designer of customised forms and would in that capacity more often than not acquire the copyright in a form
which it designs as I will attempt to show when dealing with the question of authorship.
Before concluding this part of the enquiry, it is worth repeating that a work may be original even if the author
has drawn on knowledge common to himself and others or has used already existing material (without slavishly
copying such material) provided he has spent skill, labour and judgment on it. The standard of originality required
by the Act is a low one [see Copinger and Skone James, Copyright (13 ed) paras 3.28, 3.29 and 3.32]. A work need
not be "novel"
Page 670 of [1998] 4 All SA 655 (T)
where the author has produced his result without reference to an existing work, even if someone else has
produced a similar work, for then he does not copy but creates (Copinger par 3.33). Where he does make use of
existing subjectmatter the question to be decided is whether he has expended sufficient independent skill and
labour to justify copyright protection.
In my view VH2 qualifies as a compilation for purposes of the Act, amounting to a rearrangement of existing
material plus a few new columns. Applying the abovementioned criteria, I have reached the conclusion that
although the headings and typographical material on form VH2 is commonplace and would not attract copyright, the
layout of the form has required skill, judgment and labour by the author and does merit protection under the
Copyright Act.
Who is the author of form VH2?
The word "author" is now defined in the 1978 Act in relation to a literary work as "the person who first makes or
creates the work". This definition appears to follow the judgment in the case of Pan African Engineers (Pty) Ltd v
Hydro Tube (Pty) Ltd and another 1972 (1) SA 470 (W) at 472. Dean (op cit 116) describes the author of a work as
the creator or maker of the work in its final and complete version which is ready for utilisation or commercial
exploitation. Elsewhere in the same paragraph the learned author also says that
"the author of a work is the person who is responsible for the creation of the material embodiment of the work. This person
may not necessarily be the person who conceived the idea which gave rise to, or which is embodied in the material work.
Ideas as such are not protectable by copyright and therefore the originator of an idea cannot, per se, claim any right in his
idea."
In the Pan African Engineers case (supra) at 472B, Boshoff J said the following in regard to authorship:
"In the case of Nottage and Another v Jackson (1883) 11 QBD 627 at p. 637, the view was expressed that an author is the
man who really represents or creates or gives effect to the idea or fancy or imagination; a man who is most nearly the
effective cause of the representation when completed."
The learned judge then stresses that whether a person is an author of a particular work or not is in the nature of
things always a question of fact.
If the activity of the person who reduces the work into its material form is purely mechanical in nature, in the
sense of a shorthand typist who takes down what is dictated to her and reproduces it in a written form, that
person is not the author but rather the agent or amanuensis of the author (see Donoghue v Allied Newspapers 1938
Ch 106). I am not suggesting that this principle can be applied in the instant case. The respondents are
independent contractors who clothe their clients' instructions in a material form.
In the case of Fax Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D) Hugo J accepted the respondents'
submission that only a natural person and not a company can be the author of a literary work (p 174C). This
assumption was based on the provision of section 3(2)(a) of the Act which provides that the term of copyright in a
literary work was "the life of the author and fifty years from the end of the year in which the author dies ." In my
view this assumption is with respect correct, but it does not preclude an artificial person from becoming the owner
of copyright where the author created the work in the course of his or her employment with the company.
Page 671 of [1998] 4 All SA 655 (T)