See also the remarks of Nicholas J in Laubscher v Vos and others 3 JOC (W) at 6, where the learned judge observed
that in the case of truly original artistic works a mere comparison usually provides a ready answer, whereas the
answer may not be so readily reached if the copyright and the alleged infringing works may have a common source.
The importance of the plaintiff's identifying those parts of his work which he alleges have been copied is made
clear by Millett J in a case where a "DogNBoots" design was alleged to be a reproduction of a "PussNBoots"
design. The case was Spectravest Inc v Aperknit Ltd [1988] FSR 161. The relevant passage appears at 170:
"Accordingly, where the reproduction of a substantial part of the plaintiffs' work is alleged, a sensible approach is first to
identify the part of the plaintiffs' work which is alleged to have been reproduced and to decide whether it constitutes a
substantial part of the plaintiffs' work. The test is qualitative and not, or not merely, quantitative. If it does not, that is an
end of the case. If it does, the next question is whether that part has been reproduced by the defendant. Reproduction does
not mean exact replication. A man may use another's work as an inspiration to make a new work of his own, treating the
same theme in his own manner; but he is not entitled to steal its essential features and substance and retain them with
minor and inconsequential alterations. The question is whether there is such a degree of similarity between the salient
features of the two works that the one can be said to be a reproduction of the other. In considering whether a substantial
part of the plaintiffs' work has been reproduced by the defendant, attention must primarily be directed to the part which is
said to have been reproduced, and not to those parts which have not."
View Parallel Citation
Moving from the general to the particular, a decision of the High Court of Australia concerning a map is instructive. It
is reported as Sands & McDougall (Pty) Ltd v Robinson [1917] 23 CLR 49. The plaintiff was the author of an original
work because:
"He had unquestionably prepared it by taking the common stock of information in Australia and, by applying to it personal,
that is, independent, intellectual effort in the exercise of judgment and discrimination, had produced a map that was new in
the sense that, in respect of its size and outlines, its contents and arrangement and its general appearance, it presented
both in its totality and in specific parts distinct differences from other existing maps" (per Isaacs J at 52).
The defendants (the appellants) had infringed the plaintiff's copyright for these reasons:
"It is true that the appellants changed the colours of the political divisions, corrected the Balkan boundaries, introduced
some places that had then acquired recent prominence, and cut out some places that were interfered with by some further
features of arrangement of their own map. Their map was not a mere copy in the ordinary sense of the term, but it was
clearly a reproduction of a substantial part of the respondent's map in a material form, which necessarily violated the
respondent's copyright if his work be protected by the Act. Notwithstanding all the differences referred to, there still
remained in respect of size, of draftmanship, of style, of printing type, and geographical selection and general appearance, a
manifest wholesale adoption of the
Page 130 of [1998] 1 All SA 123 (A)
individual work which the respondent had bestowed upon his map, and which had given to it its distinct characteristics and
individuality" (at 5253).
How do the two maps in this case compare? Needless to say there were numerous maps of the Park in circulation
long before the parties entered the field. As one must have expected, those maps, like the maps of the parties
show the same boundaries, roads, rivers, camps, gates and so forth. Nor does one learn with any surprise that
both parties used earlier maps, with the result that much is similar or the same. But the common features contained
in the earlier maps should be put aside in considering whether there is an objective similarity between the maps in
issue, such a similarity as may lead one to say that the one appears to be a reproduction of the other. Mrs Thomas
made this important statement in her reply "[Jacana] at no time stated that [Frandsen's] map and [Jacana's] map
look alike. They do not". The Judge below added his observation "Visually one would never say that the one map
has been copied from the other". I agree with him entirely. Had I not read the papers in this case it would never
have occurred to me that Frandsen's map is a reproduction of Jacana's. Having heard argument that impression
remains. It was pressed upon us that there had been a reproduction of a selection of features included by Jacana in
its map. I have mentioned many of the similarities and dissimilarities between the two maps earlier in this
judgment. Apart from overall impact, a study of details dependent on choice confirms the impression that the one
map is not a reproduction of the other. This conclusion makes it unnecessary to consider the second element
mentioned in Galago, causal connection, about which there was much evidence. The distinction between the two
separate elements may be illustrated in this way. Suppose a tyro of great
View Parallel Citation
ineptitude attempts to paint a copy of a masterpiece, but the ensuing work is not recognisable as a copy. There
would be no reproduction, however great the application of the tyro.
For these reasons I am of the opinion that Jacana has failed to prove infringement of the map.
The grid
The legal principles and problems mentioned in relation to the map are relevant also to whether the grid has been
reproduced, so that there has been an infringement. Again I shall assume, without deciding, that Jacana displayed
originality in making its compilation.
Jacana has rightly disavowed reliance on a grid format as such, on the division of camps into classes and on the
idea of showing which facilities are available at which camps. Its complaint is that it has expended skill and effort in
compiling the information set out in its grid and that Frandsen has reproduced it. In deciding whether there has