Frank & Hirsch (Pty) Ltd. v A Roopanand Brothers (Pty) Ltd. (580/91) [1993] ZASCA 90; 1993 (4) SA 279 (AD); [1993] 2 All SA 521 (A) (2 June 1993)

Frank & Hirsch (Pty) Ltd. v A Roopanand Brothers (Pty) Ltd. (580/91) [1993] ZASCA 90; 1993 (4) SA 279 (AD); [1993] 2 All SA 521 (A) (2 June 1993)

The Supreme Court of Appeal held that the wrapper and first insert of the TDK D60 audio cassette tapes are original artistic works protected by copyright under the Copyright Act. The copyright in these works was validly assigned to the appellant, who thus held exclusive rights in South Africa. The respondent's importation and sale of tapes in the assigned get-up constituted indirect infringement under section 23(2), as the making of such get-up in South Africa by TDK Electronics would have infringed the appellant's copyright. The court rejected the respondent's reliance on the principles of accessio and specificatio, finding them irrelevant to incorporeal copyright rights. The respondent...

Citation
[1993] ZASCA 90
Parties
Appellant: Frank & Hirsch (Proprietary) Limited; Respondent: A Roopanand Brothers (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 June 1993
Case Number
580/91
Procedural Posture
Civil Appeal / Appeal From the Durban and Coast Local Division
Outcome
Appeal allowed. The order of the court a quo is set aside and replaced with an interdict and delivery up order against the respondent, with costs including those of two counsel.
Judges
Corbett, Botha, Goldstone, Nicholas, Harms
Legal Topics
Copyright Assignment, Parallel Importation, Artistic Work Protection, Secondary Infringement
Intellectual Property Commercial and Corporate Copyright Assignment Parallel Importation Artistic Work Protection Secondary Infringement

Case Brief

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Parties

Frank & Hirsch (Proprietary) Limited

Appellant

A Roopanand Brothers (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From the Durban and Coast Local Division

Legal Issues

  1. 1 Whether the get-up (wrapper and insert) of TDK D60 audio cassette tapes constitutes subject-matter for copyright protection under the Copyright Act.
  2. 2 Whether the respondent's importation and sale of TDK tapes in the assigned get-up infringed the appellant's copyright under section 23(2) of the Copyright Act.
  3. 3 Whether the principles of accessio and specificatio affect the subsistence or enforceability of copyright in the get-up of the tapes.

Ratio Decidendi

The Supreme Court of Appeal held that the wrapper and first insert of the TDK D60 audio cassette tapes are original artistic works protected by copyright under the Copyright Act. The copyright in these works was validly assigned to the appellant, who thus held exclusive rights in South Africa. The respondent's importation and sale of tapes in the assigned get-up constituted indirect infringement under section 23(2), as the making of such get-up in South Africa by TDK Electronics would have infringed the appellant's copyright. The court rejected the respondent's reliance on the principles of accessio and specificatio, finding them irrelevant to incorporeal copyright rights. The respondent...

Court Disposition

Appeal allowed. The order of the court a quo is set aside and replaced with an interdict and delivery up order against the respondent, with costs including those of two counsel.

Orders

  • Respondent is interdicted from infringing the applicant's copyright in the get-up (cellophane wrapper and first insert) of TDK D60 audio cassette tapes by importing, selling, exposing for sale, or distributing for trade tapes in such get-up.
  • Respondent must deliver up to the applicant for destruction all copies of the subject works in their possession or under their control.