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[2015] ZAGPPHC 852
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Heald v Combined Artists (50872/14) [2015] ZAGPPHC 852 (15 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
28/7/15
Case
Number: 50872114
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
Dr
GEOFFRY RONALD
HEALD PLAINTIFF/RESPONDENT
and
COMBINED
ARTISTS DEFENDANT/EXCIPIENT
JUDGMENT
HIEMSTRA
AJ
[1]
This is an exception against the plaintiff/respondent's amended
particulars in this matter. In what follows, I paraphrase the
particulars of claim and have left out allegations that are not
pertinent to the exception.
1. The plaintiff, Dr
Geoffry Heald, is the author of two literary works entitled
Learning
Amongst the Enemies: A Phenomenological Study of the South African
Constitutional Negotiations from 1985 to 1988
(Learning Amongst
the Enemies) and
South Africa's Voluntary Relinquishment of its
Nuclear Arsenal and Accession to the Treaty on the Non-Proliferation
of Nuclear Weapons
in terms of International Law
(South Africa's
Voluntary Relinquishment). They are referred to in this judgment as
"the literary works".
2. The literary works are
subject to copyright in terms of the
Copyright Act 98 of 1978
.
3. The plaintiff
submitted the literary works as theses to the University of
Witwatersrand (the University) on 5 October 2006 and
2 June 2011
respectively.
4. The plaintiff carried
out research for the literary works, wrote, and created them under
the supervision of Professor Louise
Whittaker and Professor Jonathan
Klaaren respectively, both employees of the University.
5. At the time that the
literary works were created, the plaintiff was a South African
Citizen, resident in South Africa. He was
therefore a qualified per
son as defined in the Copyright Act 98 of 1978 (the Act).
6. The copyright
subsisting in the literary works vested in the University by virtue
of its
"Research Policy Ownership of Intellectual Property'
(IP Pol icy). The following extracts from paragraph 4.1.1
and following of the IP Policy are pertinent:
"4.1.1
Employees
Subject
to paragraph 4.3 the University owns all IP originated or developed
by its employees in the course and scope of their employment
other
than private work carried out by the employee under the University's
rules governing private work
... .
The employee may enter into
an agreement with the University to manage the commercialisation of
IP arising out of private work.
4.1.6
Students (including Teaching, Research and Graduate Assistants)
4.1.6.1.
The
same
provisions regarding the ownership of IP made or created
in the course of their employment by the University
as
apply
to other employees of the University apply to students enrolled at
the University.
4.1.6.2.
The
University owns any IP devised, made or created by any student
carrying out research under the supervision of any employee of
the
University. The provisions of clause 3 apply to any income arising
out of the commercialisation of such re search.
4.1.6.3.
The
University does not claim ownership of any IP devised, made or
created by a student who is not carrying out research under the
supervision of an employee of the University.
2.
…
3.
The University does not claim ownership of the copyright in books,
plays, musical scores and lyrics and artistic works other
than those
it has specifically commissioned.
7. The plaintiff declared
in writing, in terms of clause 7.7 of the University's document
entitled
"Final Submission of Thesis, Dissertation or
Research Report/Project' ,
that:
"I
have noted the rules relating to intellectual property and
acknowledgement of the award of the degree
as
shown in the
General Rules of the University and the University's Intellectual
Property Policy. Insofar as I hold intellectual property
rights in my
dissertation or research/project re port or thesis, and to that
extent only, I agree that the University and
its agents may archive
and make accessible to the public, upon such conditions as the
University may determine, my dissertation
or research/project or
thesis in its entirety in all form of media, now or hereafter known."
8. The plaintiff became
the owner of the copyright by virtue of assignment agreements between
the plaintiff and the University.
The effective dates of the
assignments are 5 October 2006 and 2 June 2011 respectively. Both
assignment agreements were concluded
on 9 June 2014. Copies of the
assignment agreements are attached to the particulars of claim.
9. In terms of clause 3
of each assignment agreement the University ceded to the plaintiff
the claims which it had in relation to
the infringement.
10. With effect from 9
June 2014 the plaintiff became entitled to enforce the rights of
copyright assigned in terms of the agreements.
11. During the period
September/October 2011 to November 2012, the de fendant created
a cinematograph film, as contemplated
by the Act, enti tled
"Miracle Rising, South Africa•,
which film is an
adaptation, as contem plated by the Act, of the literary works.
This, according to the particulars of claim,
constitutes an
infringement of the plaintiff's copyright, and before the assignment
agreements, the University's copyright, as
contemplated by s 6 and s
23 of the Act.
12. Prior to 9 June 2014
the University suffered damages as a result of the defendant's
unlawful conduct and after 9 June 2014 the
plaintiff suffered damages
and continues to do so.
13. The plaintiff claims
damages or a reasonable royalty.
[2]
In order to avoid confusion, I shall refer to the respondent in this
matter as the plaintiff, and to the excipient/defendant
as the
excipient.
THE
GROUNDS OF EXCEPTION
[3]
The excipient raised nine grounds upon which it is alleged that the
particulars of claim are vague and embarrassing and one
ground upon
which it is alleged that they disclose no cause of action. Ishall
first deal with the grounds upon which it is alleged
that the
particulars of claim are vague and embarrassing. Before dealing with
each ground, it is apposite to restate the fundamental
principle
relating to an exception where it is alleged that a pleading is vague
and embarrassing: It is not directed at particular
paragraphs
within a cause of action: it goes to the·whole cause of action
which must be demonstrated to be vague and embarrassing.
[1]
In my view the excipi- ent in this matter focusses on particular
paragraphs, and even particular words that, according to the
argument, are vague or ambiguous, instead of on the particulars of
claim as a whole. The particulars of claim are clear and unambiguous.
The alleged ambiguities pointed out by the excipient are not real and
can only be regarded, if at all, as ambiguous on interpretations
of
particular allegations made by the plaintiff.
[4]
On a conspectus of the particulars of claim, the cause of action
appears crystal clear. It is alleged:
1. that the plaintiff is
the author of the literary works;
2. that the University
had acquired ownership of the copyright in the literary
works by virtue of its IP
Policy, the terms of which the plaintiff
had accepted;
3. that the University
assigned ownership of the copyright to the plaintiff in terms of
assignment agreements;
4. that the excipient
infringed the copyright that subsisted in the literary works by
creating a cinematograph film entitled
"Miracle Rising"
,
which cinematograph film is an adaption (as contemplated in the
Act) and/or reproduction (as con- templated in the Act) of the
literary
works.
5. that the University
suffered damages as a result of the infringement during the time that
it owned the copyright, and that the
plaintiff suffered damages and
still does, as from the time that he acquired the copyright; and
6. that the University
ceded its claims arising from the alleged infringement to the
plaintiff.
[5]
One may quarrel over the manner in which certain paragraphs are
formulated, but the essence and meaning of the particulars of
claim
remain clear. One may also quibble over the question whether, in view
of the IP Policy, the University automatically became
the owner of
the copyright, or whether the plaintiff had assigned the copyright to
the University. In my view it does not matter.
The consequence of the
policy is that the University became the owner of the copyright and
it could validly assign it to the plaintiff.
One may also analyse the
assignment agreements and argue that they are ambiguous in certain
respects. However, that is a matter
for the trial court.
[6]
I now tum to the specific grounds of exception.
Ground
1
[7]
According to the excipient the literary works are books, while the
University does not claim ownership of copyright in books.
[2]
This, so goes the argument, is inconsistent with the allegation that
the plaintiff had effectively assigned the copyright in the
literary
works to the University.
[8]
The plaintiff nowhere said that the literary works are books. That is
a submission of the excipient. The excipient is free to
plead that
the literary works are books and that the University does not claim
copyright in books. Whether they are indeed books,
and whether the
University claimed copyright· therein, are matters for
evidence.
Ground
2
[9]
The excipient claims that the particulars of claim are inconsistent
with paragraph 4.4 of the IP Policy. This clause provides
that a
student may under certain stated circumstances publish for financial
gain at any time within twenty-four months (or such
period as the
student may agree with the University) of his or her having lodged
the thesis with the University library in accordance
with the
University rules, policies and procedures governing research work for
a post graduate degree.
[10]
It appears that there may be an inconsistency between clauses 4.1.1
and 4.1.6, on the one hand, and clause 4.4 of the IP Policy,
on the
other hand. In terms of 4.4.1 and 4.1.6 the University owns all IP
originated or developed by employees and stu dents
other than
private work. Clause 4.4.1 provides that for a period of 24 months
from lodging a thesis at the University library,
a student may
publish his or her thesis for financial gain. If the student has not
published his or her thesis within that period,
or a period agreed
with the University, then the student assigns his rights of copy
right to the University.
[11]
Mr G.E. Morley SC, appearing for the plaintiff, submitted that the
interpretation of the contract is a matter for the trial
court and
not a matter to be decided on exception. I agree. In interpreting a
contract, regard must be had to,
inter
alia, "the context in which the provisions appears, the purpose
to which it is directed and the material known to those
responsible
for its production. Where more than one meaning is possible, each
possibility must be weighed in the light of all these
factors.
”
[3]
The context in which the provisions appears, the purpose to which it
is directed and the material known to the authors of the IP
Policy
cannot be established on exception. Oral evidence is required.
Ground
3
[12]
The excipient argues that the particulars of claim are vague and
embarrassing
inter alia
in that the plaintiff relies on the IP
Policy as it pertains to employees and students, but does not plead
that he is either a student
or a lecturer.
[13]
While the plaintiff did not explicitly state that he is a student,
this is apparent from the fact that it is pleaded that he
had
submitted the literary works, in the case of
South Africa's
Voluntary Relinquishment
for degree purposes and in respect of
both the literary works that he had conducted his research and wrote
the literary works under
the supervision of professors employed by
the University.
Ground
4
[14]
In paragraph 3.10 of the particulars of claim it is alleged that the
plaintiff had "ef fectively" assigned his
copyright in
the theses to the University. The excipient argues that the word has
different meanings. On the one construction
"the assignment
oc curred as
a
matter of fact, but not formally
acknowledged' .
The excipient does not suggest any other meanings
of the word.
[15]
The Concise Oxford Dictionary defines the word "effective»
as
"Having an effect; powerful in effect; striking,
remarkable; coming into operation; actual, existing, actu ally
useable,
equivalent in its effect.n
All these definitions
indicate that [the assign ment] is unequivocal, effective and
real.
[16]
The Thesaurus of the MS Word Program provides several synonyms, one
or two of which may have a slightly different meaning,
such as
"essentiallY',
and
"for practi cal
purposes".
However, whatever meaning is ascribed to the
word, the excipient should have no difficulty pleading to the
allegation.
Ground
5
[17]
The complaint under this ground appears to be that it is unclear to
the excipient whether the plaintiff relies only on unlawful
infringement of his copyright, or also on some additional unlawful
conduct.
[18]
The excipient is conjuring up confusion where none exists. This case
concerns alleged infringement of copyright and nothing
else.
Ground
6
[19]
This ground is the same as ground 5. The excipient argues that it is
unable to discern which form of unlawful conduct it has
to plead to.
The plaintiff alleges only that the defendant has infringed its
copyright and nothing more.
Ground
7
[20]
The plaintiff pleads that he is unable to quantify the damages. The
excipient ar gues it is unable to discern whether
the inability
relates to the plaintiff's damages, or to the University's damages or
to both.
[21]
The particulars of claim state in paragraph 9.1:
"Prior
to the 9th June 2014 the University suffered damages as a result of
the defendant's unlawful conduct and the plaintiff
[him]se/f
continued to suffer damages there after, the amount of which
he is presently unable to quantify."
The plaintiff mentions
the damages suffered by the University and himself in one sentence.
It cannot be suggested that the pleading
is unclear as to whether the
plaintiff is unable to quantify the damages of the University, or of
himself or both.
Ground
8
[22]
The complaint under this ground is similar to the one under the
previous ground. The excipient complains that the plaintiff
does not
make it clear whether he is unable to exercise an election whether to
recover damages or claim a reasonable royalty in
respect of the
damages suffered by the University or by himself or of both.
[23]
The plaintiff obviously refers to the damages suffered by the
University until 9 June 2014 and his damages since that date.
Ground
9
[24]
This is a further extension of the complaint under grounds 7 and 8.
The plaintiff seeks an enquiry in terms of s 24(1B) of
the Act for
the purposes of determining the amount of damages or a reasonable
royalty to be awarded. According to the excipient
it is not clear
whether the enquiry is meant to determine the damages or royalty to
be paid to the University, or to the plaintiff
or to both. As I have
already found, there is no confusion.
NO
CAUSE OF ACTION
[25]
The excipient argues that the plaintiff pleads that after 9 June 2014
he suffered damages and continues to do so. However,
the alleged
infringement occurred during the period September/October 2011 to
November 2012. The plaintiff took assign ment
of the copyright
with effect from 9 June 2014. The plaintiff therefore did not plead
that his copyright has been infringed.
[26]
The answer to this submission is simple. The plaintiff pleads that he
continues to suffer damages as a result of the unlawful
conduct/infringement as pleaded. The plaintiff claims that the
University suffered damages when the infringement was committed
and
continued to suffer damages until it assigned the copyright to the
plaintiff. All successors in title could similarly suffer
damages.
The damages are on going and the excipient cannot be absolved
from the ongoing damages it caused merely because the
copyright and
claims in respect of the infringement had been as signed and
ceded.
[26]
I therefore find that the plaintiff has disclosed a cause of action
for the damages, if any, that he personally suffered after
9 June
2014.
CONCLUSION
[27]
I find that the particulars of claim are neither vague nor
embarrassing and that they disclose a cause of action.
I
make the following order:
1. The exception is
dismissed;
2. The excipient is
ordered to pay the plaintiff's costs, including the costs of senior
counsel.
________________________________
J
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard: 1 June 2015
Date
of judgment: 15 July 2015
Counsel
for the defendant/excipient: Adv. D.C. Fisher, SC Adv. F. Southwood
Attorney
for the defendant/excipient: Sim & Botsi Attorneys Inc
c/o
Macrobert Inc
MacRobert
Building
1062
Jan Shoba Street
Brooklyn
Pretoria
Tel.:
012 425 3400
Fax:
012 425 3600
Ref.:
E. Ward/EW/2036366
Counsel
for the plaintiff/respondent: Adv. G.E. Morley SC
Attorney
for the plaintiff/respondent: Spoor & Fisher
Building
No. 13, Highgrove Office Park Oak Avenue
Centurion
Ref.
HL3001132/HUGH MELAMOWITZ
Email:
h.melamowitz@spoor.com
Tel.:
012 676 1222
Fax:
012 676 1100
c/o
Van Zyl Le Roux Inc
First
Floor, Monument Office Park, Block 3
Cm
Steenbok Avenue and Elephant Street
[1]
Jowell v Bramwell-Jones
1998 (1) SA 836
CJV) 899G; Venter &
Others NNO v Barritt: Venter & Oth ers NNO v Wofsberg Arch
Investments 2 (Ply) Ud
2008 (4) SA 693
(C) 644
[2]
Paragraph (4).3 of the Research Policy Ownership of Intellectual
Property
[3]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] 2
All SA 262
(SCA) at para 18