these works must be "original". Although there is a dispute as to who the "author" was, it is common cause that
whoever or whatever that person was, he, she or it was a "qualified person" for purposes of section 3(1).
Jacana further claims that Frandsen infringes its copyright in the map, the grid and the Rules, relying on sections
6, 7 and 23(1) of the Act, in that Frandsen's booklet constitutes a reproduction of Jacana's three works.
Page 126 of [1998] 1 All SA 123 (A)
Frandsen opposes Jacana's application on two main grounds: first, that subsistence of copyright has not been
proved, because the originality requirement has not been established; and secondly that, in any event, an essential
ingredient of infringement, copying, has also not been proved. Prominent in this part of the defence was stress on
the common sources available to the parties, earlier maps and the like, which tended to make copying less likely
and proof of it more difficult. Evidence on such matters tended to merge into that relevant to the first ground of
opposition, lack of originality, because the existence of prior material tends also to limit the scope for originality and
to require more exacting proof of its existence than is the case with truly original works. Although evidence of this
kind may be relevant to what are two notionally distinct spheres, originality and copying, when one takes a broad
look at the evidence of the preceding sources in this case, before one descends into the caverns of the law, one
wonders how copyright infringement of a map of terra cognita is to be proved, unless reliance is to be placed upon
the copying of special features ("Jock's last hunt", "The fight with the crocodile", to take a famous example), rather
than of mere cartographical commonalities.
In Jacana's founding affidavit the stand was taken that because of the operation of section 26 in relation to
"anonymous authors", it was rebuttably presumed that (a) copyright subsisted (section 26(3)), (b) Jacana, as
publisher, owned the copyright ( section 26(3)), and (c) the works were original (section 26(4) and (5)). Consequent
upon this stand, practically no evidence of originality beyond bare assertion was tendered in the founding affidavit.
Consistently with this view of the onus, some evidence was tendered in reply.
The learned Judge a quo accepted, for the sake of argument, that the section 26 presumptions did operate in
Jacana's favour, but decided the case against it mainly on the basis that no infringement had been proved.
However, notwithstanding the assumption as to the existence of copyright, the Judge commented on all three
works, to the effect that in some respects, at least, they could not be original. There was no harm or inconsistency
in this, as it was contended there was, because there was no confusion on the Judge's part, and because the
presumptions, even if
View Parallel Citation
they do apply, are rebuttable. So much for the proceedings below. In considering the appeal I think that the
applicability of the presumptions should be addressed first.
The presumptions
Section 26 is contained in the infringement chapter of the Act and is headed "Onus of proof in proceedings". The
relevant subsections read:
"(3)
Where in any proceedings brought by virtue of this Chapter with respect to a literary, musical or artistic work or a
computer program which is anonymous or pseudonymous it is established
(a)
that the work or program was first published in the Republic and was so published within the period of fifty
years ending with the beginning of the calendar year in which the proceedings were brought; and
(b)
that a name purporting to be that of the publisher appeared on copies of the work or program as first
published,
then, unless the contrary is shown, copyright shall be presumed to subsist in the work or program and the person
whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication:
Provided
Page 127 of [1998] 1 All SA 123 (A)
that this subsection shall not apply if the actual name of the author of a pseudonymous work is commonly known.
(4)
Where in any proceedings brought by virtue of this Chapter with respect to a literary, musical or artistic work or a
computer program it is proved or admitted that the author of the work or program is dead, the work or program shall
be presumed to be an original work or program unless the contrary is proved.
(5)
Subsection (4) shall also apply where a work or program has been published and
(a)
the publication was anonymous or under a name alleged by the plaintiff or the State to be a pseudonym; and
(b)
it is not shown that the work or program has ever been published under the true name of the author or under a
name by which he was commonly known or that it is possible for a person without previous knowledge of the
facts to ascertain the identity of the author by reasonable inquiry."
Common to the invocation of subsections (3) and (5) is Jacana's assertion that the author of the map and the Rules
(they being contained in two different publications) is anonymous. Indeed, it is a fact essential for Jacana to prove
in order to bring the presumptions into operation. Yet the path to anonymity, after some strange twists, seems to
me to peter out. Surprisingly, the deponent to the founding affidavit (Mrs Thomas) reveals herself and two others,
Lana du Croq and Greg Stewart, to be authors in the normal sense. But she refrains from attempting to describe
what they originated. Of course, she was not in the position of "stout Cortez with eagle eyes" as he "star'd at the