secondary) infringer should only be liable to an injunction and compelled to return profits made on the infringement. The plaintiff must prove that, directly or indirectly, the defendant's alleged infringement is taken from the work or subject-matter in which he/she claims copyright. Thus the two elements necessary to the plaintiff's case in an infringement action are: a. ownership of the copyright by the plaintiff, and b. copying by the defendant. OWNERSHIP: Subject to certain exceptions 11 the author of a literary, dramatic, musical or artistic work is entitled to the copyright in the work. The author is the person who actually writes, compiles, composes or draws the work in question, although the idea of the work may have been suggested by another, or the work may have been subsequently altered in accordance with the advice of another.12 Where, however, the compiler of a directory or work of reference collects written material from a large number of individuals and arranges and publishes the result, the compiler and not the individuals supplying the information, is the author of the work. A mere copyist or a person to whom words are dictated for the purposes of being written down is not an author; but a translator from one language into another or a reporter of legal decisions or of a speech is an author. The author of a photograph is the person who, at the time when the photograph is taken, is the owner of the material on which it is taken. The author of the design of a building in which copyright subsists is the architect who makes the plans and supervises the work and not the builder Joint Authors Joint authors are in the position of tenants in common and not of joint tenants. One joint author cannot lawfully reproduce the work himself/herself or grant licenses to others to reproduce it without the consent of the other joint author(s), but he/she may by himself/herself take proceedings for infringement. Where copyright would not have subsisted in a work if one of the joint authors had been the sole author (or if more than one of the joint authors had been the sole joint authors), the copyright is owned by the other joint author(s). Ownership by the plaintiff (the copyright owner usually) breaks down into the following constituent parts:13 1. Originality in the author. 2. Copyrightability of the subject matter. 3. Citizenship status of the author such as to permit a claim of copyright. 4. Compliance with applicable statutory formalities. 5. (If the plaintiff is not the author), a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff the valid copyright claimant.
11
As to works by an author under a contract of service or apprenticeship, commissioned artistic works, works of joint authorship, etc. 12 Lord Hailsham of St. Marylebone (ed.), Halsbury's Laws of England, Vol. 9, Butterworths, London, 1974, at 548. 13 Nimmer, Melville B., Nimmer on Copyright, Vol. 3, Mathew Bender, New York, 1985, at 13-4. 9