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[2014] ZAGPPHC 439
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Heald v Combined Artists CC (68766/2012) [2014] ZAGPPHC 439; 2013 BIP 353 (GNP) (24 January 2014)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
/ES
(
REPUBLIC
OP SOUTH AFRICA
)
CASE NO: 68766/2012
DATE: 24 JANUARY
2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN
DR GEOFFRY RONALD
HEALD
..................................................................................................
PLAINTIFF
AND
COMBINED ARTISTS
CC
....................................................................................
DEFENDANT/EXCIPIENT
JUDGMENT
PRINSLOO. J
[
1
]
At issue is an exception noted by the defendant against the
plaintiffs particulars of claim on the basis that the particulars
do
not disclose a cause of action.
[2] Before me. Ms
Fisher SC, assisted by Ms Southwood, appeared for the excipient (to
which I will refer as "the defendant")
and Mr Morley SC
appeared for the plaintiff.
Brief
introduction
[3] Rougly during
the period 1998 to 2011, the plaintiff wrote two books respectively
dealing, broadly speaking, with the constitutional
negotiations
leading up to the transition to a new democratic dispensation and
South Africa's surrendering of its nuclear arms
capacity.
[4] The plaintiff
claims ownership of the copyright subsisting in these books and
alleges that the defendant, during the period
20) 1 to 2012. made a
film constituting an adaption or reproduction of the books without
the plaintiffs authority as the proprietor
of the copyright. The
plaintiff alleges that the conduct of the defendant constitutes an
infringement of the copyright in the books
as contemplated in
sections 6 and 23 of the Copyright Act 98 of 1978 (’’the
Act” ).
[5] The plaintiff
claims appropriate relief consisting of, broadly speaking,
declaratory relief, delivery up of all alleged infringing
material,
damages, interest and costs.
[6] In its rule 23
exception, as I have indicated, the defendant claims that the
particulars of claim do not disclose a cause of
action and the
defendant asks for the exception to be upheld and the particulars of
claim to be struck out.
[7] Where the
particulars of claim form the subject of this enquiry, it is useful
to quote the relevant paragraphs for illustrative
purposes:
“
3.
3.1
At all material times hereto, valid copyright subsisted in an
original literary work entitled
'Learning
Amongst Enemies: a Phenomenological Study of the South African
Constitutional Negotiations from 1985 to 1988
'
('Learning Amongst the Enemies') and
1
South
Africa's Voluntary Relinguishment 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 Relinguishment'). The plaintiff tenders
inspection of the works pursuant to the provisions of rule
35(12) of
the Uniform Rules of Court by appointment with the plaintiffs
attorneys.
3.2
Both '
Learning
Amongst the Enemies’ and 'South Africa's Voluntary
Relinguishment'
are
original literary works (collectively the 'Literary Works') subject
to copyright in terms of the Copy right Act 98 of 1978 ('the
Act')
and were written down, recorded and produced to the material form
during the periods from 1998 to 2006 and 2006 to 201 1
respectively.
3.3 The plaintiff is
the author of the Literary Works, he having made and created them. At
the time when cach of the Literary Works
was made, the plaintiff was
a South African citizen and he was resident in South Africa. The
plaintiff is. accordingly, a qualified
person as defined in the Act
and the ownership of the copyright subsisting in the Literary Works
vests in him.
3.4 The creation of
each of the Literary Works involved considerable independent skill,
knowledge and effort. The Literary Works
were not copied from any
other source and each of the Literary Works is an original literary
work.
4.
During
the period September/October 2011 to November 2012. the defendant
created a cinematograph film (as contemplated in the Act)
entitled
'Miracle Rising
,
South Africa
”
('the cinematograph film') which cinematograph film is an adaption
(as contemplated in the Act) and/or reproduction (as contemplated
in
the Act) of the Literary Works.
5.
The plaintiff
tenders inspection of the cinematograph film pursuant to the
provisions of rule 35(12) of the Uniform Rules of Court
by
appointment with the Plaintiffs attorneys.
6
.
The plaintiff also
tenders a copy of a document prepared by him. which furnishes
particulars of the aforesaid infringement, but
is too bulky to
incorporate as an annexure to these particulars of claim.
7.
The aforesaid
conduct by the defendant was not authorised by the plaintiff as the
proprietor of the copyright subsisting in the
Literary Works.
8
.
In the premises- the
conduct of the Defendant constitutes an infringement of the copyright
in the Literary Works as contemplated
in section 6 and section 23 of
the Act.
9.
The plaintiff has
suffered damages as a result of the defendant’s unlawful
conduct, the amount of which the plaintiff is presently
unable to
quantify. The plaintiff is presently unable to exercise an election
as to whether to recover damages or alternatively,
in lieu of
damages, to claim a reasonable royalty calculated on the basis of the
reasonable royalty that would have been payable
by a licensee in
respect of the Literary Works."
[8] Then follows the
paragraphs dealing with the relief claimed including damages, a
possible inquiry in terms of section 24(1B)
of the Act, delivery up,
interest and costs.
The so-called
"particulars of infringement" referred to in paragraph 6 of
the particulars of claim
[9] The contents of
paragraph 6 have been quoted.
[10] The summons was
issued in November 20)2. In February 2013. these particulars of
infringement referred to in paragraph 6 were
delivered to the
defendant's attorney in terms of rule 35(12) and in response to a
rule 35(12) notice delivered by the defendant.
[11] It is
convenient to quote the wording of rule 35( 12):
"Any party to
any proceeding may at any time before the hearing thereof deliver a
notice as near as may be in accordance with
Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his inspection and to permit him to
make a copy or transcription thereof. Any party
failing to comply
with such notice shall not. save with the leave of the court, use
such document or tape recording in such proceeding
provided that any
other party may use such document or tape recording."
The plaintiffs Rule
35(12) notice of 5 February 2013 simply reads as follows:
"Be pleased to
take note that the document furnished in the particulars of the
infringements referred to in paragraph 6 of
the Plaintiffs
Particulars of Claim is attached hereto marked 'A'."
I will refer to this
document, for the sake of brevity, as "annexure A".
[12] Annexure "A"
is a lengthy affair. It runs into some 38 pages, mainly in single
spacing. It has no formal heading
or proper introduction, barring a
reference to abbreviations that will be used in the document.
It simply starts
off, out of the blue as it were, as follows:
"1.1
Reference to the exact location on the DVD of the
Offline
Cut Miracle Rising South Africa 21 May 2012
where
material is contained in the Offline Cut will always be expressed in
terms of the time-count register on the DVD."
From the very tenor
of this opening paragraph, such as it is, one gathers the impression
that one is dealing with material that
has to be tested in evidence
and cross-examination. The same applies, in my view, to the rest of
annexure A which consists of extracts
from the books ("Literary
Works") versus the film Miracle Rising (also described by
counsel as "the documentary")
in an effort to show
similarities between the two and to support the plaintiffs case that
the documentary is an adaption or reproduction
of the Literary Works,
as pleaded.
Another
example can be found in paragraph 2.8 of annexure "A" where
the author says: ... "Lotriet’s statement
thus links the
documentary film to
Learning
Amongst Enemies
through
the Baas and Neef story of learning the language of the enemy."
The author then carries on by quoting a number of examples
from the
documentary where the same theory was raised, for example in
paragraph 2.15 he states: 'Peter Gabriel in the
Offline
Cut Miracle Rising South Africa 21 May 2012
of
the cinemagraphic film, at 22 minutes and 15 seconds comments:
'Mandela was smart enough to learn Afrikaans - not only stand
in the
shoes of his enemy but say it in their language and their voice'."
[13] This is the
pattern throughout: random notes, roughly divided into some eight
sections, illustrating similarities between the
Literary Works and
the documentary in support of the case that the fatter is an adaption
(as contemplated in the Act) and/or reproduction
(as contemplated in
the Act) of the former.
It appears as if the
notes were made by someone working his or her way through the
Literary Works and the documentary, recording
the perceived
similarities. The document is not without grammatical imperfections.
It ends as bluntly as it started with the following
paragraph 8.4:
"Charles
Viila-Vicencio at 12 minutes and 33 seconds in
Offline
Cut ...:
'human
beings have a tremendous capacity to be reasonable to be
compassionate even in the most extreme situation and say Ok let's
move on’."
Annexure "A"
is not endowed with any closing remarks or, for example, a summary of
submissions as to what it is all about.
There is no name or signature
identifying the author. I will be most surprised if annexure "A"
was crafted by a member
of the plaintiffs legal team.
[14] In my opinion,
annexure "A" cannot be described as a pleading by any
stretch of the imagination, i make this remark,
and have to deal with
it further, because it was argued on behalf of the respondent that
annexure "A" became part of
the pleadings when it was
referred to in the particulars of claim. Indeed, the exception is
based on annexure "A" and
not on the particulars of claim.
[15] Where it is the
pleading as it stands that has to be considered for purposes of
deciding an exception of this nature, 1 have
to consider the
aforesaid contention of the respondent in some detail:
1.
There is a concise (and in my respectful opinion an accurate and up
to date) statement of the law relating to exceptions to be
found in
Erasmus
Superior
Court Practice
(service
issue 40, 2012) at B1-151 to B1-152 (1 do not quote all the
authorities listed in the footnotes):
"An exception
is a legal objection to the opponent's pleading.
It complains of a
defect inherent in the pleading: admitting for the
moment that ali the
allegations in a summons or plea are true, it asserts that even with
such admission the pleading does not disclose
either a cause of
action or a defence, as the case may be. It follows that where an
exception is taken, the court must look at
the pleading excepted to
as it stands: no facts outside those stated in the pleading can be
brought into issue - except in the
case of inconsistency - and no
reference may be made to any other document. This is precisely the
difference between exceptions
on the one hand and pieas in bar,
dilatory pleas and pleas in abatement on the other hand: the latter
usually introduce fresh matter
which requires to be proved by
evidence. In order to succeed an excipient has the duty to persuade
the court that upon every interpretation
which the pleading in
question, and in particular the document on which it is based, can
reasonably bear, no cause of action or
defence is disclosed; failing
this, the exception ought not to be upheld."
At B1 -152A it is
stated:
"In
so far as there can be an
onus
on
either party on a pure question of law it rests upon the excipient
who alleges that a summons discloses no cause of action or
that a
plea discloses no defence; the excipient has the duty to persuade the
court that the pleading is excipiable on every interpretation
that
can reasonably be attached to it. The pleading must be looked at as a
whole. Where there is uncertainty in regard to a pleader’s
intention an excipient cannot avail himself or herself thereof unless
he or she shows that upon any construction of the pleadings
the claim
is excipiable."
At Bl-157 it is
stated:
"If evidence
can be led which can disclose a cause of action alleged in a
pleading, that particular pleading is not excipiable.
A pleading is
excipiable only on the basis that no possible evidence led on the
pleadings can disclose a cause of action."
2.
I state in passing that, in my view; the particulars of claim as they
stand, and as quoted, and on the test to be found in
Erasmus,
supra
,
are not excipiable. I am of the view that they disclose a cause of
action. I also consider them to be. broadly speaking, in harmony
with
the precedents proposed on the subject in the authoritative work by
Harms.
Amler's
Precedents of Pleadings
6
th
edition p 1 13 and 7
th
edition pi 31.
3.
With reference to the test in
Erasmus
,
supra
,
which I raised with counsel during the proceedings before me, I was
referred, by defendant's counsel, to the case of
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking
v
Advertising
Standards Authority of South Africa
2006
1 SA 461
(SCA) as authority for the proposition that "there is a
movement away from the employment of an overly technical approach to
determining exceptions". At 465H. paragraph [3]. the learned
Judge of Appeal say s the following:
"Exceptions
should be dealt with sensibly. They provide a useful mechanism to
weed out cases without legal merit. An ovcr-technical
approach
destroys their utility ..."
At 467G-I. paragraph
[10]. the following is said:
"Counsel for
the plaintiff strenuously objected to our having regard to the
totality of the pleadings and wish to confine the
court to a
consideration of the facts alleged in the body of the particulars of
claim in isolation. Ilis objection was ill-founded.
Pleadings must be
read as a whole and in deciding an exception a court is not playing
games, blindfolding itself. In any event,
as will become apparent,
these allegations, even if meritorious, make no difference to the
case."
It
appears that in
Telematrix
the
complaint was aimed at taking into account the "totality of the
pleadings". In the present case, the only pleading,
in my
opinion, is the particulars of claim. As I read
Telematrix.
it
does not deal at all with the trite principles (as per the statement
in
Erasmus)
to
be applied when deciding an exception. The subject does not feature
in the head note or in the final order that w
;
as
made.
Tele matrix
does
not feature in the 2012 statement of the law by
Erasmus
,
made six years after
ï'elemaínx
was
reported. What does appear from
Telemairix,
is
that the parties evidently agreed that the ASA's
Code
of Advertising Practice and Procedural Guide
could
be taken into account for purposes of deciding the exception, even
though it did not form part of the pleadings - see the
judgment at
465D-F. This is something which 1 have to take into account for
present purposes and J will revert to the subject.
Generally
speaking, however, it seems to me that a plaintiff, for example, will
normally be slow to allow other documents to be
thrown into the
equation when the plaintiff is armed with the trite authorities that
the pleading must be looked at as it stands
and. what is more, it
must be accepted that everything stated in the pleading is true.
4. Rule 18 deals
with rules relating to pleadings generally. Rule 18(4) reads as
follows:
"Every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies for his claim,
defence or answer to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto."
[16]
In commenting on this subrule, the learned author,
Erasmus
,
says the following at B1-130 to B1-130A:
"Facts
and not evidence must be pleaded, and the subrule makes it clear that
material facts only should be pleaded. The distinction
between
facta
probanda
(the
facts that had to be proved) and
facia
probantia
(the
facts that would prove those facts) should be kept in mind. For the
sake of clarity it is sometimes necessary to plead history,
but this
should be done with caution and unless the history is clearly severed
from the cause of action the pleading may be rendered
vague and
embarrassing."
I
do not refer to all the authorities listed in the footnotes, but it
is useful to have regard to what is stated in
Nasiona/e
Aartappel Koopcrasic Rpk v Price Waterhouse Coopers Inge/yf
2001
2 SA 790
(T) at 798B-G, and the authorities there referred to.
[17]
In my view, the
facia
probanda
.
as pleaded, and for the reasons mentioned, disclose a proper cause of
action. It passes muster w hen tested against the trite
legal
principles. What is stated therein must be accepted to be true for
purposes of deciding the exception. It must be considered
as it
stands. The Literary Works and the documentary do not come into the
equation at all. neither were they before me during the
proceedings.
[18]
What is stated in annexure "A", introduced in response to a
rule 35(12) notice three months after the summons was
issued, can be
nothing more, if anything at alL than
fat,
facta probantia
.
They have to be proved in evidence, during which exercise a
consideration of the Literary Works and the documentary, as a whole,
must also come into play.
[19] On this basis.
I am of the view that annexure "A" cannot be employed to
attack the particulars of claim, by way of
exception, as disclosing
no cause of action. For this reason alone. I am of the view that the
exception must fail.
[20]
Nevertheless, it appears that annexure "A" was introduced
by agreement between the parties for consideration for
purposes of
these exception proceedings. As 1 pointed out. something akin thereto
appears to have happened in
Telematrix,
supra
.
when the parties agreed that regard could be had to the
Code
of Advertising Practice and Procedural Guide
although
it did not form part of the pleadings.
When
I discussed the status of annexure "A" with Mr Morley. he
conceded that it formed part of the
facta
probantia.
This
is in contrast with an earlier submission by Mr Morley. if I
understood him correctly, that annexure "A" can be regarded
as part of the pleadings. For all the reasons mentioned. I cannot,
with respect, agree with that submission. However, where counsel
from
both sides based their arguments on annexure "A", I will
deal with the exception on that basis as well, although
not without a
measure of reluctance.
The exception
[21] According to
the formal document, the defendant excepts to the particulars of
claim as disclosing no cause of action on the
following grounds:
"1. The
plaintiff pleads the particulars of the alleged copyright
infringement relied upon by him in a document to which reference
is
made in paragraph 6 of the particulars of claim.
2. The particulars
of the infringements so pleaded, or any of them:
2.1 do not. in the
identification therein of the material alleged to have been copied,
plead any matter and/or concepts and/or ideas
which is/are capable of
being protected in terms of the
Copyright Act 98 of 1978
;
2.2 do not. in any
event, disclose a sufficient degree of objective similarity between
the material so pleaded and the cinematograph
film in issue, such as
would be necessary to establish a cause of action;
2.3 given the
nature, form, subject-matter and content of the cinematograph film
(which is a documentary based on historical events
and comprised
essentially of filmed interviews with public figures and archival
film, photographs ans sound recordings of real
events, as well as
some music) do not disclose the required causal connection between
such film and the material pleaded, either
with reference to such
infringements complained of by the plaintiff, or at all."
The defendant then
prays for the exception to be upheld with costs and the particulars
of claim to be struck out.
[22] I will deal
with the exception on the basis that annexure "A" was
"pleaded" by the plaintiff as alleged,
although 1 have
already found that it was not.
[23] In their
comprehensive heads of argument, counsel for the defendant presented
a summary of the eight discernable points made
in annexure "A"
as suggesting areas of similarity, adaption, reproduction and so on
which the plaintiff appears to rely
on in support of his case. I take
the liberty to adopt this summary for illustrative purposes although
Mr Morley argued, correctly
in mv view, that the matter should go to
evidence when these points may be expanded, limited or amended and
new arguments may be
introduced:
1.
the documentary is predicated on the second proposition of the
so-called "falsification thesis" found at p74 of
Learning
Amongst Enemies,
namely
, that the negotiated outcome (the constitutional negotiations
resulting in South Africa's first democratic election in 1994)
was a
miracle or a fluke;
2.
the documentary contains the story of the late President Mandela
instructing
inter
alia
Mr
Mac Maharaj to learn Afrikaans, "
the
language of the enemy
",
a story which is also related in
Learning
Amongst Enemies
through
the "
Baas and
Neef story
";
3.
the documentary contains a re-enactment which indicates that in April
1977 the KGB discovered a nuclear silo at Vastrap in the
Kalahari
Desert,events which are referred lo in
Learning
Amongst Enemies
by
means of a quotation from an interview given by Pik Botha;
4.
the documentary has adopted the "poisoned chalice" question
which appears in
Learning
Amongst Enemies
.
namely whether South Africa's possession of nuclear weapons would
have undermined Mr Mandela's statue as a leader;
5.
the documentary includes film material showing Mr F W de Klerk's
speech and Mr Mandela's response at the opening of CODESA which
led
to the development of a new confidence in the negotiation process by
the majority of black people in South Africa. This clash
between the
two leaders is also referred to in various interviews conducted for
Learning Amongst
Enemies:
6.
The inclusion of interviews in the documentary which relate the
effect which the Boipatong Massacre had on the constitutional
negotiations, which effect is also referred to in interviews
conducted for
Learning
Amongst Enemies:
7.
the inclusion of interviews with Gillian Slovo in the documentary
allegedly on the basis of the commentary at pp 172-175 of
Learning
Amongst Enemies
on
Joe Slovo's design of the "Sunset Clause";
8.
the inclusion of interviews in the documentary which tell the story
of Mr Roelf Meyer and Mr Cyril Ramaphosa going fishing, a
story which
is also related in interviews conducted
for
Learning Amongst Enemies
;
9.
the selection of the Phil a Nd wand we story in the documentary which
is set to correlate with Prof Charles Villa-Vicencio's
notion of a
Miracle expressed in the story
of
"The Colonel''
which
he related in an interview for
Learning
Amongst Enemies
and
which is quoted on pp231 -232 in
Learning
A mongst Enemies.
[24]
I turn to some of the arguments presented on behalf of the respective
parties.
(i)
Submissions
on behalf of the defendant
[25]
At the outset, 1 w
;
as
confronted with the request to view the documentary before hearing
argument. This was, understandably, opposed by Mr Morley.
1 refused
the request. 1 did so because of the trite principle, also stated by
Erasmus, supra.
that
"it follows that where an exception is taken, the court must
look at the pleading exceptcd to as it stands: no facts outside
those
stated in the pleading can be brought into issue - except in the case
of inconsistency - and no reference may be made to
any other
document. This is precisely the difference between exceptions on the
one hand, and pleas in bar, dilatory pleas and pleas
in abatement on
the other hand ..."
[26] I was reminded
of the relevant authorities dealing with the two things that a
plaintiff has to establish in order to prove
copyright infringement
by reproduction.
In
Galago Publishers
(Ply) Ltd and Another
v
Erasmus
1989
] SA 276 (AD) the 1 earn ed J u d ge o f A pp ea 1 say s the folio w
i n g a t 2 8 0A - C :
"Consequently
it is not necessary for a plaintiff in infringement proceedings to
prove the reproduction of the whole work:
it is sufficient if a
substantial part of the work has been reproduced. To 'reproduce'
within the meaning of the Act means to copy
and in order for there to
have been an infringement of the copyright in an original work it
must be shown (i)that there is sufficient
objective similarity
between the alleged infringing w ork and the original work, or a
substantial pan thereof, for the former to
be properly described, not
necessarily as identical work, 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
plaintiffs work, or is it an
independent work of his own? ..."
See
also
Jaeana
Education (Pty) Ltd
v
Frandsen
Publishers (Pty) Ltd
[1997] ZASCA 109
;
1998
2 SA 965
(SCA) at 972A-C.
I
add that neither
Galago
nor
Jacana
involved matters decided in exception. In both cases evidence was
heard in order to decide whether infringement of the copyright
had
been established. Given the nature of the present dispute, it is
perhaps not inappropriate to mention that there are certain
similarities between the background of the case in
Galago
and
the present matter. Sec the useful summary in the headnote of
Galago
at
277E-J. Two books were written about the same subject, namely the
so-called Rhodesian bush war. The successful plaintiff in the
trial
court and respondent on appeal contended that 12 out of 17 chapters
from the original work had been copied in the offending
work.
[27] Before me. it
was contended on behalf of the defendant that it will be "impossible"
for the plaintiff to prove the
following essential elements of his
claim: that copyright subsists in the material alleged to have been
copied (ie that the material
copied is original)' that there exists a
sufficient degree of objective similarity between the alleged
original work and the alleged
infringing work and. finally, that a
causal connection exists between the plaintiffs and the defendant's
works namely that the
defendant's work had been derived from the
plaintiffs work.
As
to originality, it was argued that there is no copyright in ideas or
thoughts or facts. As will be pointed out, this is not in
line with
what was held in
Galago.
It
was argued that the historical facts and extracts from interviews
mentioned in the Literary Works do not, by their nature, constitute
the plaintiffs original material and thus cannot sustain a basis for
a complaint of copyright infringement by the defendant. There
is no
application of skill or labour in verbatim recordals of statements
made by others. The sections of the Literary Works quoted
which
constitute such reeordals are not original and cannot sustain a claim
for copyright infringement.
[28]
As to objective similarity, it was submitted that the existence of
historical subject-matter and common subject-matter can
affect the
ability of a plaintiff to establish objective similarity - see
Jew
am
.
supra
,
at 972C-D. The interviews in question relate to historical events or
facts. The source, in each case, is the interviewee. The
fact that
there are alleged to be corresponding topics in the parties'
respective works is merely a consequence of the subject-matter
of the
works being a common one. and the fact that some of the interviewees
are common to both parties' respective works is a consequence
of
their being intimately involved in the events being narrated.
Counsel
for the defendant sought to draw a comparison between the present
case and the one decided in
Juia
& Co Lid and others
v
De Koker and
others
1994
3 SA 499
(T) where the works in issue were two text books on income
tax in South Africa. Counsel pointed out that it was held in
De
Koker
,
inter alia
at
505C-E. that the Income Tax Act is common property to all who may
wish to write a treatise thereon and the legal principles therein
embodied. Similarity in the competing works cannot be dubbed as
copying if they are but following the sequence and wording of the
Income Tax Act. In my view, the only observation 1 have to make, for
present purposes, is that
De
Koker
,
like
Jacana
and
Galago
,
was not decided on exception but after evidence was considered in
application proceedings, i agree with repeated submissions by
Mr
Morlev that this case cannot be decided on exception. The Literary
Works and the documentary,
infer
alia
.
should be scrutinised in evidence and cross-examination in order to
determine whether or not adaption and/or reproduction took
place as
intended by the provisions of the Act.
[29] As to
causality, it was argued that other than a reliance on a similarity
of ideas and historical facts, there is nothing in
anncxure "A"
which indicate that the documentary referred to or relied on the
Literary Works. This approach is simplistic
and wrong. It ignores the
allegations in the particulars of claim, paragraph 4, to the effect
that the documentary is an adaption
and/or reproduction as
contemplated in the Act. Where the particulars of claim are under
scrutiny for purposes of deciding this
exception, there is no basis
for ignoring its contents.
It was argued that
where the interviewees are describing historical events, it is
unsurprising that the same events are referred
to in the parties'
respective works.
(ii)
Submissions
on behalf of the plaintiff
[30]
Mr Morley, correctly, in his comprehensive heads of argument restated
the trite principles to be applied when deciding an exception
as
already quoted from
Erasmus
,
supra,
and
the relevant aurhorities listed in the footnotes.
Correctly, he
submitted that as this is an exception, all the allegations in the
particulars of claim must be taken to be correct.
It is also for the
defendant to satisfy the court that the conclusion of law pleaded by
the plaintiff cannot be supported by any
reasonable interpretation of
the particulars of claim. Correctly, he reiterates that no facts
outside those stated in the pleading
may be brought into issue and no
reference may be made to any other document. In particular neither
the Literary Works nor the
documentary itself arc part of the
pleadings. The facl that they were referred to in the pleadings and
tendered for inspection
in terms of rule 35(12) does not make them
part of the pleadings. I agree. What I do not understand, is why the
same submission
was not made in respect of annexure "A".
Counsel does, however, in paragraph 10 of his heads of argument, and.
correctly
in my view, comprehensively deal with the true status of
annexure "A". He refers to the "the Particulars”
which can only be a reference to annexure "A" given the
tenor of w hat he argues. I take the liberty to adopt the reasoning
of Mr Morley by quoting paragraph 10 of his heads of argument:
"It
is submitted that the determination of the issues in this litigation
cannot be determined on exception. As has been submitted
above, the
aforementioned paragraphs of the Particulars of Claim make out Dr
Heald’s cause of action. In reality, what Combined
Artists are
contending is that paragraph 4 is not supported by the content of the
Particulars. (
My
note
:
as 1 stated, paragraph 4 is the paragraph containing the allegation
that the documentary is an adaption and/or reproduction of
the
Literary Works as contemplated by the Act.) That cannot be determined
without consideraring the Literary Works and the film
as wholes in
the context of all the evidence to be led at the trial. The
Particulars are simply a succinct summary and/or reference
identifying parts of the Literary Works and the documentary, upon
which evidence will be led in order for Dr Heald to prove his
ease.
It is submitted that they cannot be construed as if they constituted
the entire evidence on which Dr Heald will rely at the
trial of this
matter. The Particulars are provided so that combined artists are
made aware of the case that it will be called upon
to meet at the
trial of this matter. It is submitted that there is a clear
distinction between what is pleaded and what is afforded
by way of
Particulars and that an exception cannot be grounded on the
Particulars furnished by Dr Heald."
[31]
In dealing with the defendant's arguments, counsel then turns to one
of the main submissions made on behalf of the defendant,
to which I
have also referred, namely that there is no copyright in ideas or
thoughts or facts. Counsel then refers rather extensively
to
Galago
at
283J-285B. I quote some extracts from the passage:
"It
has often been stated that there is no copyright in ideas or thoughts
or facts, but only in the form of their expression;
and if their
expression is not copied there is no infringement of copyright ...
(here follows a number of mainly English case references)
... as
pointed out. however by Laddie, Prescott and Vitoria
The
Modem Law’ of Copyright
at
31, this pithy statement is liable to lead to contusion. The authors
continue: '... in the case of a book the ideas it contains
are
necessarily expressed in words. Hence, if it were really true that
the copyright is confined to the form of expression, one
would expect
to find that anyone was at liberty to borrow the contents of the book
provided he took care not to employ the same
or similar language.
This is not so. of course."' (
My
note
:
in argument before me. Mr Morley argued that on the stance adopted on
behalf of the defendant, 'no one can have copyright in a
history
book’. He reminded me that copyright is generally claimed by
authors of books on historical events. He referred me,
for example,
to books on the boer war by authors such as Pakenham. Farwell and
Dencys Reitz. My Afrikaans translation of Pakenham’s
Die
Boere (Jorlog
contains
the following inscription: "Kopiereg C 1979 Thomas Pakenham ...
Kopiereg in Afrikaanse Vertaling C 1981 ... Alle rcgte
voorbehou.
Geen gedeelte van hierdie publikasie mag in cnige vorm of op enige
wyse, elektronies. mcganies. deur foto kopiëring,
opnames of
andersins gereproduseer. in 'n herwinning stelsel gebêre of
oorgesein word sonder toestemming van die kopiereg
houer nie."
Similar warnings are found in my edition of Pakenham's
The
Scramble for Africa
and
Commando
by
Deneys Reitz.)
I continue to quote
extracts from what the learned Judge of Appeal stated at 284C and
further:
''And. at 33. the
authors sum up the present law in England as follows: ’Ideas,
thoughts and facts merely existing in a man's
brain are not "works",
and in that form are not within the
Copyright Act: but
once reduced
to writing or other material form the result may be a work
susceptible of protection. Given that there exists a good
copyright
in a work, the law does not protect the general idea or concept which
underlies the work, nor any one fact or piece of
information
contained therein. However, a more detailed collection of ideas, or
pattern of incidents, or compilation of information
may amount to
such a substantial part of the work that to take it would be an
infringement of the copyright, although expressed
in different
language or other form, it being a matter of fact and degree whether
the dividing line has been impermissibly crossed.'
There
appears to be ample support for these views in the English case law.
In the recent
Ravenseroft
case
supra
(
my
note
:
Ravenseroft v
Herbert and New English Libraiy Ltd
[1980J
RPC 193
at 203) BR1GHTMAN J emphasised (at 204) that: 'Copyright
protects the skill and labour employed by the plaintiff in production
of his work. That skill and labour embraces not only language
originated and used by the plaintiff, but also such skill and labour
as he has employed in selection and compilation.'
And later in his
judgment he said (at 206): 'It is I think clear from the authorities
that an author is not entitled, under the
guise of producing an
original work, to reproduce the arguments and illustrations of
another author so as to appropriate to himself
the literary labours
of that author."'
[32]
At 285C-F. the following passage can be found from an extract quoted
by the learned Judge of Appeal from the English case of
Ladbroke
(Football) Ltd
v
William hlill
(Football) Ltd
11964]
1 Ali ER 465 (FIE) at 469:
"A wrong result
can easily be reached if one begins by dissecting the plaintiffs work
and asking, could section A be the subject
of copyright if it stood
by itself, could section B be protected if it stood by itself, and so
on. To my mind, it does not follow
that because the fragments taken
separately would not be copyright, therefore the whole cannot be.
Indeed, it has often been recognised
that if sufficient skill and
judgment had been exercised in devising the arrangements of the whole
work, that can be an important
or even decisive element in deciding
whether the work as a whole is protected by copyright."
These remarks were
obviously quoted with approval by the learned Judge of Appeal,
CORBETT JA, as he then was.
[33] In my view, it
is obvious that all these issues cannot be decided on exception but
have to be tested by the trial court. What
the defendant wants me to
do, is to decide the issue without even having regard to the Literary
Works and the documentary, let
alone hearing evidence,
cross-examination and argument on the contents thereof. In my view,
to do so, or to attempt to do so, would
be inappropriate and wrong in
the circumstances of this particular case. For this reason, too. the
exception should fail.
The order
[34] I make the
following order:
1. The exception is
dismissed.
2. The defendant is
ordered to pay the costs which will include the costs of senior
counsel.
WRC
PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD ON: 5
SEPTEMBER 2013
FOR THE PLAINTIFF: G
E MORLEY SC
INSTRUCTED BY: SPOOR
& FISHER
FOR THE EXCIPIENT: D
C FISHER SC ASSISTED BY F SOUTH WOOD
INSTRUCTED BY: SIM
AND BOTSI ATTORNEYS INC