Jacques Magliolo
CONFUSION reigns in the diary publishing industry in the wake of a court ruling that allows diaries to be copied.
The Appellate Division has ruled that designing, drawing and composing the layout of a diary does not constitute an original artistic or literary work.
At the end of August, the AD dismissed publisher Waylite Diary’s two-year copyright battle against First National Bank. Waylite contended that FNB had reproduced a diary that had been designed by both parties.
Tino Cianfanelli, author of the diary and owner of Waylite, says: “There is no longer any protection for designers of publications under the Copyright Act, now that the court has ruled against us.
“Artists and designers of diaries in particular are in for a shock if they believe that they have any protection.” He regrets ever having approached FNB.
During 1987, Waylite approached the bank and proposed to design and provide them with a specialised diary, which was to be used by managers when out of the office. As a result of Waylite’s input and that of FNB’s art department, an extremely successful “field diary” was produced for 1988.
In his closing arguments, Mr Justice Harms said: “FNB’s managing director was very pleased with the work and Waylite was commissioned to produce similar field diaries for 1989, 1990 and 1991.” About 3 000 copies of the first diary were sent to managers and clients.
However, in 1992 FNB decided to reproduce the diary without the assistance of Waylite. Immediately, Waylite applied for an interdict on the grounds of copyright infringement. The matter was contested by FNB and the issue was brought to the Supreme Court in 1992, where Mr Justice Stegman dismissed the application on the grounds that the appointment page of the diary could not be considered either a literary or artistic work.
Judge Stegman concluded that the work in designing, drawing and composing the pages in which the copyright was claimed was not original within the meaning of the Act, “as it did not have the quality of meritorious distinctiveness”.
Waylite then took the matter to the AD, where its case against FNB was again dismissed. It seems that, instead of looking at the diary as a whole, the court examined whether a single line could constitute a literary work and whether the days of the week could be construed as a literary work.
It concluded that Waylite had failed to prove successfully that the appointment pages were artistic or literary works and therefore dismissed the case.
In layman’s terms, the court stated that arranging nouns on a page did not need artistic talent or specialised knowledge of layout, design or any literary ability.
Copyright attorneys’ reaction to the ruling is mixed. One said that “in adopting the English law’s approach towards compilations, which states that in order to be the subject of copyright, a compilation should be more than a mere common placement of data, the court placed the Copyright Act in question”.
Another disagreed: “The AD did not change the Act, but simply interpreted it to mean that the diary was an original work only in the sense that it had not been copied. Its dispute lay in FNB’s reproduction of words which anyone can use.”
Anne Stern, acting for FNB says: “This decision was important to show the minimum amount of skill and effort needed to define a work of art.”
So how does one protect one’s copyright in South Africa? It seems the answer lies in drawing up contracts, before work is started, to include restraints of trade and placing restrictions on who can print the documents.
Cianfanelli is not so sure: “A contract will only protect you against the original company reproducing your work. It does not prohibit others from copying your work in part or as a whole.”