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[2015] ZAGPPHC 598
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Heald v Combined Artists (50872/14) [2015] ZAGPPHC 598 (28 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 50872/14
DATE:
28 JULY 2015
In
the matter between:
Dr
GEOFFRY RONALD
HEALD
......................................................................................
PLAINTIFF
And
COMBINED
ARTISTS
.....................................................................................................
DEFENDANT
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 person 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
a
Research
Policy Ownership of Intellectual Property
(IP
Policy). 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 earned 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
research.
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:
“
/
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 report 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 defendant created a cinematograph film, as
contemplated by the
Act, entitled
“Miracle Rising,
South Africa
”, which film is an
adaptation, as contemplated by the Act, of the literary works.
This, according to the particulars
of claim, constitutes an
infringement of the plaintiffs 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. I shall
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 excipient 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 contemplated 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 turn 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 students
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 copyright 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 “effectively”
assigned his copyright
in the theses to the University. The excipient
argues that the word has different meanings. On the one construction
“
the assignment occurred 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, actually useable, equivalent
in its effect
All
these definitions indicate that [the assignment] 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 practical 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 argues it is unable to
discern whether the inability
relates to the plaintiffs damages, or
to the University’s damages or to both.
[21]
The particulars of claim state in
paragraph 9.1:
“
Prior
to the 9
th
June 2014 the University suffered damages as a
result of the defendant’s unlawful conduct and the
plaintiff [h\m]self
continued to suffer damages thereafter, 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(1 B) 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
assignment 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
ongoing 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
assigned 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
plaintiffs 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
(W) 899G;
Venter
& Others NNO v Barritt: Venter & Others NNO v Wofsberg
Arch Investments 2 (Pty) Ltd
2008
(4) SA 693 © 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