Pacific ... Silent, upon a peak in Darien". The Kruger Park was well explored and well mapped. To establish that a
new map which is original had been created would have required exacting demonstration. The resort to the
presumptions spared this arduous labour. If the course adopted is a permissible one it must open a new chapter in
copyright litigation. Anonymity, real, or even better, pretended, must become the preferred mode. If this case were
not capable of decision on the footing that the authorship of both publications is not anonymous, it might have
been necessary to enquire whether
View Parallel Citation
a plaintiff, who well knows who the author is, may resort to the presumptions arising from anonymous authorship.
However that may be, Mrs Thomas in her founding affidavit justifies the absence of evidence of originality by
claiming that the author was anonymous. The immediate enquiry is then whether that is in fact so.
The map (which includes the grid) states that it was "created" by Jacana Education and the Kruger National Park.
The two complementary verbs used in the definition of "author" in section 1 are "makes or creates". Therefore the
use of the word "creates" is an indication of a claim to authorship. Is the authorship indicated anonymous or not? A
publication is anonymous where the name of an author is wanting. That is not the case here. Two names are given,
Jacana Education and Kruger National Park. The existence of anonymity appears to be a simple fact, unrelated to
whether there has been a misnomer, that is where the wrong person has been named as author. On the face of it,
accordingly, the author of the map is not anonymous. Jacana seeks to overcome this difficulty by contending that
only a natural person can be the author of a literary or artistic work. I do not propose entering into the elaborate
debate to which this submission may lead. Even if Jacana be correct about artificial persons, I fail to
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see how a person is not named when he is in fact named, even though he is not in law entitled to be an author. In
any event, the name Jacana Education is not on the face of it that of a corporation, but rather that of a firm. So
even the elementary factual basis for this elaborate legal argument is lacking.
As far as the leaflet containing the Rules is concerned, it simply says "(C) Jacana Education". Supposing that the
Rules do constitute an original compilation, this name could be that of the publisher, that of a third party who has
acquired the copyright, or that of the author. Once the third alternative is a clear possibility, to my mind Jacana fails
to establish, also in the case of the leaflet, that the author was anonymous.
In reply there was an attempt to introduce pseudonymity (also catered for by section 26(3) and (5)). The point
was not raised in the founding affidavit as a basis for the application of the presumptions. For that reason it cannot
be raised now. Pseudonymity was not pressed in oral argument in this Court.
My conclusion is that the presumptions contained in section 26(3), (4) and (5) do not apply to either publication.
As there was no attempt to prove originality by means of evidence in the founding affidavit, such a conclusion is
fatal to the appeal. Mr Franklin rightly conceded as much.
However, lest Jacana should feel that it has lost on a technicality or as a result of bad advice, I will say
something brief about what would have been the merits of the case if the presumptions had operated and the onus
of disproving originality had rested on Frandsen, with the consequence that Jacana would have been entitled to
deal with originality in reply.
The map
Even with reference to the reply there is a question whether Jacana has succeeded in meeting Frandsen's rebutting
evidence upon which its denial of originality is based. I do not intend exploring that question,
View Parallel Citation
because I consider that Jacana has, in any event, failed to establish infringement, where it bears the onus. As
Corbett JA pointed out in Galago Publishers (Pty) Ltd and another v Erasmus 1989 (1) SA 276 (A) at 280BD, in order
to prove copyright infringement by reproduction the plaintiff must establish two distinct things, namely:
"... (i) that there is sufficient objective similarity between the alleged infringing work and the original work, or a substantial
part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or copy of the
latter; and (ii) that the original work was the source from which the alleged infringing work was derived, ie that there is a
causal connection between the original work and the alleged infringing work, the question to be asked being: has the
defendant copied the plaintiff's work, or, is it an independent work of his own?"
It is upon the first element that I would focus. The existence of prior subjectmatter may render proof of objective
similarity more difficult for a plaintiff. Burger J said in Bosal Afrika (Pty) Ltd v Grapnel (Pty) Ltd and another
1985 (4) SA 882 (C) at 889CD:
"Mr Puckrin, on behalf of defendants, is correct when he argues that the 'the objective similarity' must be judged in the light
of the state of the art as at the date of the making of the alleged original work. Thus, although the alleged infringement and
the original work may bear a close resemblance, this resemblance may be explained by the fact that they both incorporate
common prior art."
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