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[2016] ZASCA 119
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Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd (886/2015) [2016] ZASCA 119; [2016] 4 All SA 311 (SCA); 2017 (2) SA 1 (SCA); 2016 BIP 395 (SCA) (16 September 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 886/2015
In the matter between:
MEDIA 24 BOOKS
(PTY) LTD
APPELLANT
and
OXFORD UNIVERSITY PRESS
SOUTHERN
AFRICA (PTY)
LTD
RESPONDENT
Neutral citation:
Media 24 Books (Pty) Ltd v Oxford
University Press SA (Pty) Ltd
(886/2015)
[2016] ZASCA 119
(16 September 2016)
Coram:
NAVSA, THERON, WALLIS, PETSE and WILLIS JJA
Heard
:
30 August 2016
Delivered
:
16 September 2016
Summary:
Copyright
– dictionary – proof of copying – correspondence of
example sentences in bilingual dictionary directed
at learners aged
ten to sixteen – similarity raising suspicion of copying –
evidence by compilers of methods used to
compile example sentences –
lack of access and reference to appellant’s dictionary –
explanation for similarity
that such inevitable in a work of this
type – disputes of fact not resolved by trial – onus of
proving copying not
discharged on the basis of similarity alone.
ORDER
On
appeal from:
Western Cape Division of
the High Court (Gamble J sitting as court of first instance):
The appeal is
dismissed with costs, such costs to include those consequent upon the
employment of two counsel.
JUDGMENT
Wallis JA (Navsa,
Theron, Petse and Willis JJA concurring)
[1]
This is a tale of two dictionaries of a
type that many South African schoolchildren, present and past, would
recognise. They are
bilingual Afrikaans-English/English-Afrikaans
dictionaries, the purpose of which is to assist learners using one of
English or
Afrikaans as a base to obtain a knowledge and
understanding of the other language. Both are relatively small with
no more than
4 000 to 5 000 entries in each language. These
reflect a basic vocabulary incorporating the most commonly used words
in each language. Each entry consists of a specific headword
[1]
and identifies the part of speech (noun, verb, adjective etc), or
parts of speech,
[2]
of the word; gives the equivalent word in the other language; and
provides a short sentence or sentences illustrating its meaning
or
the different shades of meaning that it possesses. If the entry is in
respect of an Afrikaans word the sentence illustrating
its meaning
will be in Afrikaans and then be translated into English and vice
versa.
[2]
In point of time the first dictionary to be
published was published by a predecessor of the appellant, Media24
Books (Pty) Ltd (Media24).
It was initially entitled
Tweetalige
Aanleerderswoordeboek
and the first
edition was produced in 1993. It received favourable reviews as being
an advance on what had previously been available.
It was republished
under the name
Pharos
Aanleerderswoordeboek vir Skole
in
2006. For convenience I will refer to it as the
Aanleerderswoordeboek.
[3]
The respondent, Oxford University Press Southern Africa (Pty) Ltd
(OUP) published its work, the
Oxford
Afrikaans-Engels/English-Afrikaans Skool Woordeboek
(the
Oxford Woordeboek
)
in 2007. It too received favourable reviews. The two are competitors
in the market place.
[3]
In October 2011 Media24 commenced
preparations for a new bilingual Afrikaans-English dictionary to
replace the
Aanleerderswoordeboek
.
It is customary when a publisher decides to do this for it to
investigate the market and examine competing and potentially
competing
dictionaries in order to decide how to compile its own work
in a manner that will be commercially successful in the target
market.
Although we were not told specifically what first provoked
suspicion, Media24’s employees came to the conclusion, after
looking
closely at the
Oxford
Woordeboek
, that to a substantial
extent it had been copied from the
Aanleerderswoordeboek
.
After taking legal advice and undertaking further investigations,
using independent experts, it launched proceedings in the Western
Cape Division of the High Court claiming that OUP was guilty of a
breach of its copyright in the
Aanleerderswoordeboek
and sought interdictory and other relief. Gamble J dismissed the
application and refused leave to appeal. The appeal is with the
leave
of this court.
Preparing a dictionary
[4]
The preparation of a new dictionary is not
a simple matter and involves a substantial amount of planning. Small
basic bilingual
dictionaries, such as the two in issue in this case,
are divided into two sections, one each for words drawn from the two
languages.
So these two dictionaries have an Afrikaans side and an
English side. On each side the first step is to identify the words
constituting
the core basic vocabulary in that language. These words,
which are not necessarily common to both sides,
[4]
are the headwords on which each entry is based. The entry translates
each word into its equivalent or equivalent in the other language.
It
identifies the relevant part of speech and frequently used
inflections of the word, such as plurals of nouns, or adverbs derived
from verbs.
[5]
Where a word has more than one meaning all
relevant meanings must be identified. If the different meanings arise
because the word
can be used as more than one part of speech, for
example, as both a noun and a verb, they are reflected separately and
distinguished
by the identification of the relevant part of
speech.
[5]
Where the word bears different meanings in different contexts
[6]
these must be identified and placed in order, with the most
significant and widely used meaning first and the others following
in
declining order of importance. In a basic bilingual dictionary aimed
at learners of one of the languages, only the more significant
meanings are given and more subtle linguistic usages are omitted.
[6]
Potentially the most significant task in
compiling a dictionary is the preparation of sentences or phrases
that explain and illustrate
the meaning of a word. Not all
dictionaries have this. Large-scale explanatory dictionaries of a
single language often achieve
the same purpose by means of quotations
from publications in which the word has been used.
[7]
In dictionaries of the type under consideration, the compiler
formulates short sentences, referred to as example sentences,
illustrating
the use of the word in context. Because the dictionaries
are aimed at school children it is important that these sentences
should
be consistent with their life experience so that the meaning
may more easily be grasped.
[8]
In practice this means that the illustrative sentences will be
relatively simple both in structure and theme.
Media24’s case
[7]
In the founding affidavit of Dr Wanda
Smith, herself a lexicographer, Media 24 identified three areas where
it claimed that the
Oxford Woordeboek
had copied its
Aanleerderswoordeboek
.
They were in the compilation of the headwords or lemmas on both the
Afrikaans and the English sides of the dictionary; in the
ordering of
senses with words having more than one sense; and in the example
sentences used in both the Afrikaans and English sections
of the
dictionary. These latter, it contended, had either been copied
directly or had been loosely adapted while following the
same themes,
sometimes by the alteration of a single word. In support of these
contentions it put up an affidavit and report by
Dr Anton Prinsloo
(to whom I will refer as Dr Prinsloo to distinguish him from
Professor Prinsloo who features later in the narrative),
an academic
from Stellenbosch University, who had examined the entries in the two
dictionaries for four letters (B, D, I and S)
on both sides and
identified where they overlapped in all three aspects. The relevant
pages containing those letters extracted
from the two dictionaries
were attached to Dr Prinsloo’s report and highlighted in marker
pen. In addition, he compiled two
schedules reflecting the example
sentences that he regarded as problematic.
[8]
Dr Prinsloo’s analysis of the areas
in which he found commonality between example sentences in the two
dictionaries fell into
three broad areas. The first instances was
where the example sentences were exactly the same. In relation to the
word ‘baie’
both dictionaries included as a sentence
illustrating one meaning of the word: ‘Baie dankie vir jou
help’. The second
involved only a small change was reflected as
in the case of the word ‘brightly’ where the two
sentences read: ‘The
sun is shining brightly’ and ‘The
sun is shining brightly today’. Thirdly there were words
where he identified
thematic commonality as with ‘behaal’
(‘achieve’) where the sentences were: ‘Christine
het baie hard
gewerk om sukses in die eksamen te behaal’ and
‘As jy hard werk, kan jy sukses behaal’. I will refer
collectively
to these different incidents of overlap between the two
dictionaries as correspondences. The extent of such correspondences
emerged
from a statistical analysis undertaken by Professor Martin
Kidd, a statistician, the thrust of which was that the degree of
overlap
between the two works in regard to the example sentences was
of the order of 16 to 24% when the statistical analysis was conducted
on the basis of a random selection of words.
[9]
By the time the matter came before the High
Court the complaint in regard to the commonality between the
headwords in the dictionaries
had been abandoned in the light of the
evidence of Professor Daniel Prinsloo, an academic from Pretoria
University, (referred to
as Professor Prinsloo to distinguish him
from Dr Prisloo, who is mentioned above) concerning the manner in
which he compiled the
list of headwords used in the
Oxford
Woordeboek
. Some argument was addressed
to the allegations of similarity in regard to the order of senses in
respect of certain words, but
little turned on this, presumably
because there were few examples of this complaint and a substantial
rebuttal of the objection.
The focus of the argument, as it was also
in this court, was the extent of the alleged copying of the example
sentences. That was
always the decisive issue. If there had been
substantial copying then the claim of breach of copyright had to
succeed. If not,
it was not suggested that there was sufficient
strength in the alleged commonality of sense orders to justify a
conclusion of copying
of an extent that would warrant the grant of
relief.
[10]
In making its case in relation to the
example sentences Media24 pinned its colours to the mast of the
correspondences identified
by Dr Prinsloo. It did not rely, as
publishers of works such as directories and dictionaries sometimes
do, on having set a copyright
trap in the work and identifying
copying because the
Oxford Woordeboek
fell into the trap. A copyright trap
involves the insertion of a false word or false information or a
deliberate error in the work,
which if it appears in a competing work
is indicative of copying having taken place.
[9]
Media24’s allegation of breach of copyright was based squarely
on the correspondences between the example sentences in the
two
dictionaries. After citing a number of these in his heads counsel
summarised the submission by saying that:
‘
The
appellant could continue in this vein indefinitely. The similarities
are simply too numerous to consider individually. …
It is
submitted that the overwhelming impression that remains is that of
copying and the explanation proffered by the respondent
of “
common
phrases”
and
“
saliency
”
is simply insufficient to disturb the probabilities in this
regard.’
[10]
So, like counsel, I
will focus on the issue of copying in relation to the example
sentences. But first it is necessary to deal with
the legal framework
of the enquiry.
The law
[11]
There was no real dispute about the law to
be applied in this case. A dictionary is a literary work for the
purposes of the Copyright
Act 98 of 1978 (the Act).
[11]
As such the
Aanleerderswoordeboek
was, on publication, a literary work eligible for copyright.
[12]
The holder of copyright in a literary work is vested with the
exclusive right to reproduce the work in any manner or form.
[13]
Copyright is infringed where any person, not being the owner of the
copyright and without the licence of such owner, does any act
that
the owner has the exclusive right to do.
[14]
[12]
The application of these provisions was
dealt with in this court in
Galago
Publishers
,
[15]
where Corbett JA summarised the legal position in the following
terms:
‘
Copyright
is infringed by a person, not being the owner of the copyright, who,
without the licence of such owner, does or causes
any other person to
do, in the Republic of South Africa, “any act which the owner
of the copyright may authorise” (s
23(1) of the Act). To
determine the meaning and effect of the words just quoted in relation
to a literary work it is necessary
to refer to s 6, which provides,
inter alia
,
that copyright in a literary work vests the exclusive right to do or
to authorize the reproduction of the work in any manner or
form, the
publication of the work or the making of an adaptation of the work …
In s 1(2A) it
is provided that:
“
Any
reference in this Act to the doing of any act in relation to any work
shall, unless the context otherwise indicates, be construed
as a
reference also to the doing of any such act in relation to any
substantial part of such work.”
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 work and the original work, or a
substantial part thereof, for
the former to be properly described,
not necessarily as identical with, 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
plaintiff’s
work, or is it an independent work of his own? (See
Francis Day &
Hunter Ltd and Another v Bron and Another
[1963] Ch 587
at 618, 623, indirectly referred to with approval by
this Court in the unreported case of
Topka
v Ehrenberg Engineering (Pty) Ltd
30 May 1983).’
[13]
Sometimes the fact that an alleged
infringing work has been copied from the original work may be readily
identifiable. In the case
where it was claimed that the novel
The
Da Vinci Code
had breached the
copyright of an earlier work, broadly intended to be a work of
popular, but possibly serious, historical and religious
conjecture,
Mummery LJ said:
[16]
‘…
it
is easier to establish infringement of the copyright in a literary
work if the copying is exactly word for word (verbatim or
“slavish”
copying), or if there are only slight changes in the wording, perhaps
in some optimistic attempt to disguise
plagiarism.’
That is precisely
what occurred in the only reported case I have discovered involving a
dictionary.
[17]
The dictionary in issue in that case was an English-Tamil dictionary,
similar in type and purpose to the dictionaries in issue
in this
case. But the copying relied on was far more blatant than anything
that is alleged in the present case. For example it
emerged in the
course of the trial that the compiler of the infringing work was
unable to translate basic English words into Tamil.
The conclusion of
the trial court endorsed by the Madras Court of Appeal was that the
infringing work was a ‘piratical reproduction’
of the
copyright work with:
‘…
page
after page, word after word, slavishly copied, including the errors
and … the sequence, the meanings the arrangement
and
everything else practically the same, except for some “deliberate
differences” introduced here and there to cover
up the piracy’.
It was largely on the
same basis that Corbett JA held in
Galago
Publishers
that the infringing work was
an abridged version of the protected work ‘with extensive
language copying’.
[18]
He concluded that:
‘
The
similarities are too marked, too many and in too many instances
inexplicable except on the basis of copying.’
[19]
[14]
Sometimes, however, copying may be less
obvious. As Mummery LJ explained in the same paragraph (para 141) of
his judgment in the
Da Vinci Code
:
‘
The
“text” of a literary work may cover more than the
particular words in which it is expressed and extend to its overall
content, including the selection, arrangement and development of
ideas, theories, information, facts, incidents, characters, narrative
and so on.’
The contentions on
behalf of Media24 do not involve slavish copying or clumsy adaptive
plagiarism. It contended that the copying
was more subtle, involving
the selection of the subject matter of example sentences and the
formulation and arrangement of those
sentences. It submitted that the
extent of the correspondences was such that it could only have
occurred in consequence of repeated
reference to their own work.
[15]
The reference by Corbettt JA to the need
for a causal connection between the original work and the alleged
infringing work requires
a brief explanation. What the Act prohibits,
in the interests of the copyright holder, is the reproduction of a
substantial part
of the original work. Where it occurs this will
usually be deliberate, but that is not a necessary requirement for
infringement.
The point was made in
Francis
Day & Hunter Ltd and another v Bron
,
[20]
referred to by Corbett JA in the passage cited from
Galago
Publishers
. In
Bron
it was alleged that Mr Bron had used a well-known tune as the basis
for his own composition. He gave evidence that he had never
encountered the tune or had cause to play it and this evidence was
accepted. But the argument was that as a musician he would,
in the
ordinary course of events, have encountered the tune and when he came
to compose his own retrieved it from his subconscious
and
incorporated it in his tune. While it was not established that this
had occurred, the possibility of unconscious copying was
accepted.
Thus Upjohn LJ said:
[21]
‘
There
may be cases where, if the circumstances do not justify the
conclusion that the defendant, in denying conscious plagiarism,
is
not telling the truth, they yet justify the conclusion that he must
have heard the plaintiff’s tune, and subconsciously
reproduced
it.’
[16]
Any claim that depends to a substantial
measure on the notion of unconscious copying must be approached with
circumspection. Isolated
fragments of memory will not ordinarily
suffice because it is only copying of a substantial part of the work
that constitutes infringement.
As Diplock LJ said in the same
case:
[22]
‘
I
think that the law is perfectly clear, and that such difficulties as
there are in this appeal are solely due to the absence of
any factual
information about the mental process involved in “subconscious
copying”. We know not whether it is rare
or common, general or
idiosyncratic, nor indeed whether it is possible to remember, not a
mere isolated phrase, but a “substantial
part of” the
remembered work without remembering that one is remembering.’
[17]
In the present case, involving the
compilation of a dictionary, there can, I think, be no question of
unconscious copying. The extent
of the alleged copying is necessarily
too great to be explicable on that basis. I can understand and accept
that, when formulating
an example sentence, a compiler might
unconsciously make use of a word, phrase or idea that they had
recently seen in a similar
context after consulting another
dictionary. But when that is said to have happened several hundred
times it is not explicable
on the basis of unconscious copying.
[23]
Even lexicographers do not bury in their subconscious minds dozens,
much less hundreds, of sentences that they have read in other
dictionaries, illustrating the meaning of particular words only to
pluck them unconsciously from the recesses of memory when they
are
tasked with explaining the same word. As the authors of a leading
textbook in this field note, with a work of any complexity
it is
unlikely that a person who remembered enough of it to be able to
recreate it would be unaware of what they were doing.
[24]
That is especially so in the present case where the copying would
have had to occur in the middle of otherwise original work by
the
compilers. Accordingly, for copying of a substantial part of the
Aanleerderswoordeboek
to
have occurred in the present case it must have been deliberate
copying.
[18]
Counsel correctly submitted that in the
absence of direct evidence of copying – which is usually hard
to come by – establishing
substantial similarity between the
original and the alleged infringing work together with proof of the
possibility of access by
the alleged infringer to the original work,
suffices to raise a prima facie case of copying.
[25]
It is then for the alleged infringer to show how its work was
produced without copying. A bare denial of having copied is unlikely
to displace the inference arising from proof of similarity and access
to the original. An explanation of the process adopted in
producing
the alleged infringing copy that plausibly explains the reasons for
the similarity between them will usually be called
for. But the onus
is not thereby shifted to the alleged infringer. It is always for the
claimant to establish copying on the ordinary
standard of proof,
namely, a balance of probabilities.
OUP’s case
[19]
Media24’s case in its founding
affidavit was expressed in broad and general terms. Insofar as the
example sentences were concerned
the founding affidavit mentioned no
specific examples and merely referred to Dr Prinsloo’s report
and the schedules derived
by him from his comparative analysis of the
letters B, D, I and S in the two dictionaries. These schedules set
out all the correspondences
he identified in the Afrikaans and
English sections of the dictionaries in respect of those letters.
They were attached to the
founding affidavit as annexures NB 7
(Afrikaans), containing 215 instances, and NB 8 (English),
containing 142 instances,
respectively. That involved fewer than 300
words, because in many instances the alleged correspondences related
to various meanings
of the same word. The Afrikaans list referred to
169 out of 712 words common to both dictionaries and the English list
to 127 out
of 616 common words. The
Oxford
Woordeboek
contained 1301 headwords in
Afrikaans and 1158 in English in respect of these letters.
[20]
The figures in the previous paragraph are
taken from the report of Professor Dunne, of whom more anon. Assuming
that these four
letters were representative of the whole alphabet, so
that they can be projected for the entire dictionary, Media24’s
complaints
were confined to example sentences for no more than ten or
twelve percent of the words in the
Oxford
Woordeboek
. Given that for many words
there was more than one example sentence that means that the
percentage of example sentences showing
correspondences would be
markedly less than ten or twelve percent, perhaps nearer five or six
percent on Professor Dunne’s
figures. That was not a great deal
but it would probably be sufficient, if there was copying, to say
that a substantial part of
the
Aanleerderswoordeboek
had been copied. However, it also
raised questions about the manner in which that copying had occurred.
I will revert to this once
I have dealt with the evidence on behalf
of OUP.
[21]
The answering affidavit on behalf of OUP
was deposed to by Ms Megan Hall its publishing manager for
dictionaries, school literature
in English and general adult books
since 2008. She had managed the entire process leading to the
compilation and publication of
the
Oxford
Woordeboek
and therefore was familiar
with it in all its aspects. At the outset she noted that it was
difficult to ascertain the precise nature
and extent of the complaint
of infringement from Media24’s papers. She also made the point
that the dispute, involving as
it did a careful comparison between
two dictionaries, was not appropriate to be resolved in application
proceedings. OUP’s
attorneys conveyed as much to Media24’s
attorneys prior to the commencement of proceedings. Ms Hall indicated
that as, notwithstanding
this warning, the proceedings had been
pursued by way of application any request that it be referred for the
hearing of oral evidence
would be opposed. As it happened no such
application was made and the case was conducted on the footing that
it should be decided
on the affidavits without resort to evidence.
[22]
Ms Hall’s affidavit dealt with all
the original complaints by Media24 and traversed some matters that
later fell away. She
explained that Professor Prinsloo from Pretoria
University had been commissioned to prepare the lists of headwords,
using a corpus
derived from OUP’s publications. In the light of
his affidavit the contention of copying based on the commonality of
many
of the headwords was not pursued. Three lexicographers, working
on a freelance basis, undertook the compilation of the entries in
the
dictionary. Mrs Aletta Cloete and Dr Liezl Potgieter were
responsible for the entries, and hence the example sentences,
on the
Afrikaans side of the dictionary and Mrs Daphne Paizee prepared all
the entries on the English side of the dictionary. At
an early stage
Dr Phillipus Louw was employed to work freelance as the editor of the
dictionary, but after a few months he was
employed full-time by OUP
as its Senior Editor: Dictionaries. He was responsible for the
editing of the dictionary at every stage
and where editorial
assistants were employed to perform certain distinct tasks he briefed
them on the procedures to be followed.
[23]
Each of the compilers deposed to an
affidavit. Mrs Cloete and Mrs Paizee said that they were sent blocks
of about fifty words and
were required to compile the entries for
those words. This involved determining the sense divisions of each
word and writing example
sentences for that word to illustrate its
meaning. Both Mrs Cloete and Mrs Paizee said that in undertaking this
work they did not
have copies of the
Aanleerderswoordeboek
or the
Pharos
Tweetalige Skoolwoordeboek
, another of
Media24’s dictionaries mentioned in the founding affidavit.
They said that they did not copy any of their example
sentences from
either of these works or any other source. They both mentioned other
dictionaries that were available to them, none
of which were
published by Media24. Mrs Cloete explained that her background was as
a teacher and an editor of a major Afrikaans
dictionary. She had
authored an Afrikaans home language textbook directed at grades eight
to twelve, which broadly corresponded
with the target market for the
new dictionary. This background and experience made it easy for her
to write simple Afrikaans sentences
directed at conveying the meaning
of a fairly basic vocabulary to learners aged between ten and
sixteen.
[24]
Mrs Paizee was equally well qualified to
undertake the task of compiling entries for the dictionary. She had
been an English teacher
in South Africa and the Democratic Republic
of Congo, where she had taught English as a second language. She had
also been the
co-author and author of several dictionaries and held
senior positions, including editorial positions, at OUP, culminating
in her
becoming the Publications Director. She acknowledged the
difficulty of pitching example sentences at the right level for the
target
audience. The only other work she consulted was the
Oxford
South African School Dictionary
, a
monolingual dictionary aimed broadly at a similar group of learners
to the
Oxford Woordeboek
.
As mentioned she had sole responsibility for formulating the entries
and the example sentences on the English side of the dictionary.
[25]
Dr Potgieter was working towards her M Phil
in Translation at the time that she assisted with the compilation of
the
Oxford Woordeboek.
She
therefore had less experience than her co-compilers. Her explanation
of how she went about the work was both more extensive
and slightly
different. As Media24’s counsel placed some reliance on this in
support of his argument it is best to quote
what she said. It appears
from the following paragraphs of her affidavit:
‘
While
I did this work as a consultant I had access to and consulted about
12 different dictionaries including the Aanleerderswoordeboek
and the
Pharos Tweetalige Skoolwoordeboek. I compiled my work using
Tshwanelex which is a very useful dictionary compilation programme.
Of the 12 Dictionaries I consulted, five were bilingual dictionaries.
The way I
worked was that I would first think about the word I was working on
in the headword list, its use in language and its
sense divisions
that would be suitable for the target market of this dictionary. i.e.
schoolchildren.
I would then
consult the dictionaries I had in my library and check if there were
any cases where the words were used in ways different
to what I
already had in my treatment of the word that might also be necessary
to include in a learners’ dictionary.
I would start
by consulting the smaller dictionaries intended for school children
and then I would consult the larger ones, like
the Verklarende
Handwoordeboek van die Afrikaanse Taal (HAT) and other monolingual
Afrikaans Dictionaries to conduct the check
as set out in the
previous paragraphs.
Every word, if
it has more than one meaning or sense, has particular meanings/senses
which are used more often than others. I would
think about which
meaning or sense I thought was used most frequently and I would think
of example sentences which most typically
use that meaning or sense
of the word in a way in which a learner would understand. Many words
collocate with certain other words
(i.e. are frequently used together
in phrases or sentences) and I usually included these collocations.
For the
purpose of creating my example sentences I would sometimes consult
magazines but I would most often use examples from my
own life. So
for example, if the word was “tennis”, I thought of my
friend who played tennis and I would create a sentence
using her name
and playing tennis.
I would then
translate the Afrikaans example sentence. If I recall correctly I
translated all the Afrikaans example sentences I
worked on but if I
felt unsure doing the translation of any sentence, the Respondent had
a translator who did the translation.
I believe the English
translation I did was checked anyway.
It helped me
to translate the Afrikaans example sentences because if the sentence
did not work in English then I went back to the
Afrikaans sentence to
adjust it.
I did not
purposefully or consciously copy anything out of another dictionary.
It is possible that a sentence or type of sentence
may have stuck in
my mind but it is not unusual that there are sentences which are
similar because it is in the very nature of
writing a dictionary that
there will be similarities. As I mentioned before many word collocate
with certain other words or phrases
and are therefore typical
combinations that are usually/often used together. These high
frequency combinations of words will therefore
often be used together
in a variety of dictionaries and therefore there will often be
similarities in example sentences.
It was
very important to me to keep the sentences as short and as simple as
possible and to use examples which dealt with something
that was
relevant to learners’ lives so that they could recognize and
identify themselves with the example sentences. I had
to be mindful
to try to only use words which were already headwords in the
dictionary otherwise learners might come across words
in the example
sentences that they did not understand and were unable to look up in
the dictionary.
’
[26]
In sum, the evidence of the three compilers
was that they did not copy from the
Aanleerderswoordeboek
.
The possibility that such copying occurred in the editorial process
was rejected in the affidavit of Dr Louw. He said that he
did not
consult either the
Aanleerderswoordeboek
or the
Pharos
Tweetalige Skoolwoordeboek
in the
process of editing the untranslated work of the three compilers, nor
did he make either of these dictionaries available
to any of the
editorial assistants. Given that the dictionary covered only
frequently used words and translations that he knew
well, he said he
had little need to consult other sources in the course of his
editorial work. When he did so he used a monolingual
dictionary, the
Verklarende Handwoordeboek van die
Afrikaans Taal
. In the case of subject
specific terms in the dictionary, such as geography, he would
cross-check translations against an English
geography textbook
published by OUP.
[27]
Apart from the evidence of those directly
involved in the compilation and editing of the dictionary, OUP also
delivered affidavits
by three expert witnesses. The first was
Professor Timothy Dunne, an
ad hominem
professor in the Department of
Statistics at the University of Cape Town, where he was previously
head of department. Media24’s
expert, Professor Kidd,
acknowledged his expertise in the field of statistics. Two points in
his evidence were important. The first
was an analysis of the
correspondences identified by Dr Prinsloo and incorporated in
annexures NB7 and NB 8 to the founding affidavit.
Professor Dunne
obtained the contributor labels from OUP that enabled him to identify
which compiler was responsible for each of
the correspondences. He
analysed that information against the contents of the two annexures
and this showed that the correspondences
were more or less evenly
distributed among the three compilers. Counsel for Media24 attacked
this conclusion on the basis that
Professor Dunne had not identified
the source of his information, but that attack was misplaced as the
source was clearly stated
in Professor Dunne’s affidavit.
Media24 did not challenge this evidence in reply. It served to
exclude the possibility that
the correspondences were all the work of
one of the compilers alone – what counsel referred to as a
‘rogue compiler’.
[28]
The second important aspect of the evidence
of Professor Dunne was to draw attention to the statistical principle
usually summarised
in the maxim that correlation does not imply
causation. What this means is that the mere fact that there is a
correlation between
two things – in this case the example
sentences – does not necessarily mean that the one is the cause
or source of
the other. In other words, the fact that there is
correspondence between different example sentences does not establish
that those
that came into existence later in time were copied from
the earlier ones. That is merely one possibility.
[29]
Professor Dunne’s analysis pointed to
the absence of an identifiable single source of copying (which he
referred to as plagiarism).
He said that therefore arguably what
remained was a requirement that evidence of a collective conspiracy
was necessary. His reason
was that if the correspondences were to
constitute evidence of copying, then either the three compilers
colluded to copy from the
same sources, while ostensibly working
separately, or they all separately, without reference to the others,
did so of their own
volition.
[30]
While Professor Dunne was careful not to
venture into lexicographical territory, he drew attention to the need
to weigh factors
pointing in the direction of copying against other
potential explanations of the correspondences. Those explanations
were dealt
with in the affidavits of Mr Michael Rundell and Professor
Taljard, both lexicographers. Professor Taljard identified the
constraints
that apply to the preparation of a basic bilingual
dictionary directed at learners of a language in the context of a
school. The
headwords in such a dictionary must be carefully chosen
by identifying words in frequent use. The profile of the users
affects
the formulation of example sentences. These must not use
language that is more difficult than the word being explained and the
examples must relate to the world in which the users live. As a
result, example sentences will tend to revolve around home and school
and general matters of common knowledge and experience for learners
in the particular age group.
[31]
Professor Taljard said that example
sentences serve two functions. They not only illustrate word usage,
but they also enable the
child to decode the meaning of the headword.
Thus with the word ‘circle’ the reference is to the fact
that a circle
is round. The example sentences in relation to a baby
will naturally refer to its age so as to identify that it is a baby
and distinguish
it from other children. In order to illustrate this
point Professor Taljard prepared a table in which she compared 59 of
the example
sentences in the two dictionaries in this case with
example sentences from two other similar bilingual dictionaries aimed
broadly
at the same market sector. The similarity they displayed was
apparent from the schedule.
[32]
Mr Rundell said that establishing
plagiarism or copying in a reference work is more difficult than in
the case of a novel or song
or a textbook. The reason is that a
reference work, like a dictionary, is an assemblage of generally
available knowledge and one
would expect correspondence between the
contents of different reference works dealing with the same topic.
The problem is more
acute when dealing with a relatively small
dictionary aimed at meeting the needs of learners with a relatively
low level of language
proficiency. Such a dictionary, by its very
nature, has a limited range of words and meanings and the necessarily
simple illustration
of meanings by way of example sentences will call
upon well-known common concepts. His conclusion was that:
‘…
the
resulting texts are likely to show strong similarity: indeed, it
would be odd if they did not.’
[33]
Mr Rundell illustrated the explanatory
function of example sentences
[26]
with a number of examples drawn from Dr Prinsloo’s
correspondences. He said that:
·
The word ‘bored’ is best
explained and understood by referring to someone having nothing to
do;
·
The word ‘broom’ is best
explained and understood by referring to someone sweeping;
·
The word ‘second-hand’
is best explained and understood by contrasting it with something
new;
·
The season ‘spring’ is
best explained and understood by saying that it is the season between
winter and summer;
·
The word ‘dear’, as a
form of address, is best explained and understood by referring to the
salutation at the commencement
of a letter;
·
The word ‘drunk’ is best
explained and understood by reference to the excessive consumption of
alcohol.
[34]
Like Professor Taljard, Mr Rundell
illustrated his point about the likelihood of example sentences of an
illustrative nature being
similar by way of a short table of 15 words
comparing example sentences drawn from five other dictionaries.
However, he was careful
to say that in his examination of the
schedule annexure ‘NB 8’ there were a few cases
where the similarities could
not be entirely explained by the
constraints on compilers to select the most frequent and typical
scenarios. He mentioned five
words where he took this view but added
that they constituted a minority of no more than 10 instances out of
the total of 142 words
in ‘NB 8’. He specifically
said that he could not agree with the claim by the deponent to the
founding affidavit
that the similarities are ‘clearly too many
and too noticeable to be coincidental’.
Was copying proved?
[35]
Media24 established that OUP had access to
the
Aanleerderswoordeboek
and
that there were sufficiently substantial similarities between the
example sentences to raise a prima facie case of copying,
calling for
an explanation from OUP of how they arose. That explanation was
forthcoming in two parts. First, there were explanations
by the three
compilers of the methods they used in formulating the sentences as
well as evidence of their access, or lack of it,
to the
Aanleerderswoordeboek
.
Second, there was the evidence that such correspondences were likely
to occur when creating a dictionary of this type, given its
limited
range and purpose and the need to adopt an approach to the
formulation of example sentences that would fit with the life
experience of children.
[36]
Media24 chose not to pursue this case by
way of trial. Nor did it ask for the matter to be referred to oral
evidence. In asking
for it to be decided on the affidavits alone, it
therefore bound itself to the long established approach described in
Plascon Evans
.
[27]
That meant that the case could not be determined simply on a weighing
of the probabilities as they emerged from the affidavits.
The facts
deposed to by OUP’s witnesses had to be accepted, unless they
constituted bald or uncreditworthy denials or were
palpably
implausible, far-fetched or so clearly untenable that they could
safely be rejected on the papers. A finding to that effect
occurs
infrequently because courts are always alive to the potential for
evidence and cross-examination to alter its view of the
facts and the
plausibility of evidence.
[28]
[37]
On the issue of copying, Media24 was
confronted by the emphatic evidence of Mrs Cloete and Mrs Phaizee
that they did not copy at
all. At best for it there was an
acknowledgement by Dr Potgieter of the possibility that ‘a
sentence or type of sentence
may have stuck in my mind’ from
some other dictionary, not necessarily one of Media24’s range.
But a random sentence
or two is a far cry from the deliberate copying
of which she was effectively, although not expressly, accused. That
she denied.
Clearly she could not have been a ‘rogue compiler’,
as referred to by counsel, because the evidence of Professor Dunne
showed that the correspondences were relatively evenly distributed
among all three compilers. His evidence reinforced what was
already
apparent, namely that the correspondences could not be the work of
one compiler alone, because they appeared on both the
Afrikaans and
the English sides of the dictionary. In view of the division of
labour among the compilers that necessarily meant
that they were the
product of more than one person.
[38]
Media24’s response to this was a
direct challenge to the truthfulness of this evidence. In its
replying affidavit Dr Smith
said that given the degree of
correspondence between the two dictionaries she was compelled to deny
the contents of their affidavits
insofar as they alleged that in
compiling the example sentences they had not copied from the
Aanleerderswoordeboek
.
Its case was therefore that the denials of copying were ‘bald
or uncreditworthy denials or were palpably implausible, far-fetched
or so clearly untenable that they could safely be rejected on the
papers.’ Counsel submitted that this was justified. I do
not
agree.
[39]
It is apposite to mention that counsel was
invited to indicate in what manner the alleged copying had occurred.
No clear answer
to that question emerged in the course of argument.
The drumbeat of the argument was simply that the correspondences were
so extensive
as to rebut any evidence or any probability pointing in
the opposite direction. That is not a proper approach. As Harms JA
once
said:
[29]
‘
It
is manifestly unfair to argue a case on inferences from some facts
and ignoring unchallenged direct evidence to the contrary.’
The circumstances in
which a conclusion can be reached on credibility without hearing oral
evidence are rare.
[40]
The argument for Media24 seems to me to
fall into the trap of being misled by what has been referred to as
similarity by excision.
In
IPC
Media
,
[30]
a case that in the way it was conducted bears a close resemblance to
this one, the point was made that in order to establish breach
of
copyright all the evidence must be examined, not only that which
points in the direction of copying. Laddie J said:
‘
In
copyright cases, chipping away and ignoring all the bits which are
undoubtedly not copied may result in the creation of an illusion
of
copying in what is left. This is a particular risk during a trial.
Inevitably the court will be invited by the claimant to concentrate
on the respects in which his work and the alleged infringement are
similar. But with sufficient concentration one may lose sight
of the
differences. They may be just as important in deciding whether
copying has taken place.’
It is important to
heed this warning. In order to appreciate this point it is necessary
to examine closely the facts in regard to
matters where there was no
allegation of copying. In other words, in order to deal with the
contention that the correspondences
alone sufficed to carry the day
in favour of copying, we must look at the evidence on behalf of OUP
that its dictionary was compiled
without copying. Only then can the
merits of the argument that we must reject this evidence, based on
the correspondences alone,
be assessed.
[41]
I start with the extent of the alleged
copying. Professor Dunne demonstrated that no more (and probably
less) than sixty percent
of the headwords were common to both
dictionaries. Thus the entries in respect of the words that were not
common could not have
been copied. It was suggested that of the
common words only around twenty percent showed correspondences with
the example sentences
in the
Aanleerderswoordeboek
.
These figures showed that the bulk of the work in the
Oxford
Woordeboek
was original.
[31]
That meant that any copying that occurred was intermittent. An
examination of Dr Prinsloo’s schedules does not reveal any
discernible pattern and none was suggested to exist, for example,
that correspondences occur only in relation to words having multiple
complex meanings. Most are in relation to relatively commonplace and
quite simple words like ‘box’, ‘broom’,
‘distance’, ‘invite’ and ‘sleep’
to take a few examples. That implied that the alleged copying
was
both random and intermittent with no apparent common theme, although
it was said to be deliberate.
[42]
Apart from its reliance on the
correspondences Media24 needed to propose a plausible scenario in
which the copying it alleged had
taken place. As noted in paragraph
39 it did not do so. That complicated its task. If the
correspondences, or at least the bulk
of them, arose from the three
compilers having copied example sentences from the
Aanleerderswoordeboek
,
Professor Dunne identified two possible scenarios. The one was that
the three had collaborated in copying and agreed to use Media24’s
dictionary to that end. However, there was no evidence that they were
even aware of the identity of their co-compilers, or knew
one
another, or were in communication. But that was necessary if the
conspiracy theory, as Professor Dunne referred to it, was
true.
[43]
It was also necessary that these three
women, all highly qualified, and two with established records in the
field of pedagogical
publications aimed at schools and school
children, would be willing to risk their reputations and their future
careers by engaging
in such dishonest actions on a limited scale.
They would have had to breach their contracts with OUP in terms of
which they warranted
that their work was original, and in doing so
they would have had to run the risk that a highly skilled and
experienced editor
might pick up the copying in the course of the
editorial process. Given their backgrounds they must all have been
acutely aware
of the risks involved in copying another publisher’s
dictionary.
[44]
Finally, what advantage did they stand to
gain from doing this? As illustrated by Professor Dunne the
correspondences amounted to
less than ten percent of the entire task
undertaken by them, so random copying would not markedly have eased
the burdens imposed
by that task. Most of the example sentences were
simple and it was unlikely that persons as well qualified as the
three compilers
would have found it particularly difficult to
formulate the sentences. Nor would it have resulted in extra
remuneration. It seemed
on the surface to be a situation of nothing
to gain and everything to lose.
[45]
Turning to the second scenario it involved
the three compilers deciding separately, and without communication
with their colleagues,
to copy example sentences from elsewhere and
all of them then choosing to do so from the
Aanleerderswoordeboek
.
The improbabilities outlined in relation to the conspiracy theory
were compounded in the non-conspiracy situation. The reason
is that
in a conspiracy there may be one person who thinks of engaging in it
and then persuades the others to join in. Where there
is no
conspiracy and they each act separately that requires each of them to
have formed separate reasons for engaging in the dishonest
and
forbidden activity. The probability of one of them doing so was
already small for the reasons dealt with in the previous paragraphs.
The probability that two of them would do so and would choose the
same vehicle to cheat was even smaller. The probability of all
three
doing so, using the
Aanleerderswoordeboek
,
was likely to be vanishingly small.
[32]
[46]
Had Media24 proceeded by way of trial
action it would have had to address these questions to the compilers
and discredit their evidence
through the medium of cross-examination.
Instead it argued that the correspondences alone were inexplicable
unless copying had
occurred. This not only required that the
compilers be disbelieved, but it needed to exclude as even possibly
credible the explanation
for the existence of the correspondences
that excluded copying. That lay in the evidence of Professor Taljard
and Mr Rundell. They
both said that some such correspondences were
probable, if not inevitable, when preparing a dictionary of this
sort, where there
is a rival in the market. The reason was that the
dictionaries were basic dictionaries aimed at school children, who
were in the
process of learning a language. The headwords in the
dictionary represented a basic vocabulary and the meanings that the
dictionary
sought to illustrate were those most common in ordinary
usage. The example sentences were therefore directed at being simple
and
clear and based on the life experience of the children, which was
likely to be limited. In the result, so they said, it was not
surprising to find correspondences in the example sentences, whether
in their formulation or in their context.
[47]
There was support for this in the replying
affidavit of Dr Smith. She accepted that certain example sentences
can illustrate a very
typical usage of a word and where there was a
correspondence in the two dictionaries in relation to such instances
it was not necessarily
due to copying. This require
d
a comparison of the sentences and an evaluation of
them to see whether their correspondence might be attributable to
this. Her only
quibble with the argument was that she said that this
did not apply to all the example sentences. As regards the evidence
of Mr
Rundell this was not significantly challenged, although Dr
Smith took the view that his views based on monolingual dictionaries
were not entirely applicable to work on a bilingual dictionary. That
in turn was based on a lexicographical principle about which
there
was disagreement, namely whether all the words on the one side of the
dictionary should correspond with all the words on
the other side. Dr
Smith was a firm believer in this, but those responsible for the OUP
publication and OUP’s expert witnesses
did not share this view.
Of greater importance was that Dr Smith accepted Mr Rundell’s
illustrations of how words are used
in conjunction with others, and
his view that the frequency with which a word is used in conjunction
with another is highly relevant
to the formulation of a simple
sentence to illustrate the meaning and use of the latter were in
substance accepted. All that was
denied was that this was the reason
for the correspondences in the present case.
[48]
Similarly much of the evidence of Professor
Taljard was accepted and only disputed on minor points of emphasis,
nuance and approach,
rather than being rebutted on points of
substance. In the face of all this evidence directed at showing that
copying had not occurred
we were invited, from a perusal of Dr
Prinsloo’s two schedules, to infer that the correspondences
were so blatant, and the
possibility of their having occurred in the
ordinary course of compilation of a dictionary of this type so
far-fetched, that we
could reject all of this evidence on the papers.
[49]
I am unable to reach that conclusion on the
basis of Dr Prinsloo’s schedules alone and in the absence of
the witnesses having
given evidence and been cross-examined. Counsel
for Media24 accepted that some of his correspondences were inevitable
as pointed
out by OUP’s witnesses. For example, in both
dictionaries the sentences in regard to the word ‘baba’
(‘baby’)
referred to the age of the baby. In both, one of
the sentences in regard to the word ‘blue’ refers to the
colour of
the sky and another refers to the mixing of blue with
another colour to make a third colour. In both, the words ‘alfabet’
and ‘alphabet’ are illustrated by reference to the
alphabet having 26 letters. In both, the word ‘afskop’
(kick-off’) is explained by reference to the time of the
kick-off. In both, the sentence explaining ‘stomach-ache’
refers to eating too much. Whether Mossel Bay or Agulhas is chosen,
they are obvious reference points when illustrating the word
‘south’.
Describing ‘spring’ as coming between winter and summer
is likewise obvious. In each of these
cases (and there are many more)
it seems to me that the correspondence between the sentences is at
least as likely, if not more
likely, to have arisen from the adoption
of the most obvious ordinary example of the use of the word in common
parlance among schoolchildren.
In other words, the inference that
Media24 asked us to draw from the correspondences on their own was
not a permissible one.
[50]
If Dr Prinsloo had excluded from his lists
instances of the type discussed in the previous paragraph, a clearer
picture would have
emerged of the cases where copying could more
properly be advanced as the explanation for correspondences. That
exercise would
also have given a better idea of the potential scale
of copying, which as already mentioned could not on any basis have
been extensive.
I could understand evidence showing that in the
ordinary course a correspondence of about five percent was to be
expected when
compiling similar dictionaries, but that correspondence
of twenty percent was beyond the norm, but no such evidence was led.
Media24
elected to stand or fall by Dr Prinsloo’s comparisons
without a trial. In my view it must fall for the simple reason that
without the advantages that a trial would have given, it is
impermissible to reject the evidence of the compilers and the
explanation
that OUP advanced for the existence of the
correspondences. That does not involve any final conclusion on the
issue of copying.
It merely explains why a positive conclusion that
copying occurred could not be made on the basis of the
correspondences alone.
[51]
Two comments remain to be made. The first
is that I have not dealt in detail with the possibility that the
alleged copying occurred
during the editorial phase under Dr Louw.
The reason is that the argument centred around the compilers and it
was not suggested
that, if they were not guilty of copying, Dr Louw
and his editorial assistants had discarded some of their work and
engaged in
copying during the editorial process. The improbability of
that occurring was considerable. Not least of many points that could
be made is that there would have been no purpose in discarding the
work of the compilers for which OUP had paid, in favour of copying
from the
Aanleerderswoordeboek.
Again,
however, the illumination that cross-examination would have thrown on
this issue was absent because of the manner in which
Media24 elected
to conduct its case.
[52]
The second is that the task that Media24
set for itself in trying to discharge the onus of proving copying on
the papers without
oral evidence was an onerous one. In the three
cases referred to in argument where a court rejected a denial of
copying by the
author of the infringing work
[33]
that occurred only after a full trial. In
Bron
,
Da Vinci Code
and
IPC Media
the
denial of copying was accepted after trial. It seems to me that it
will only be in the most egregious case that a court will
reject a
denial of copying merely on the basis of comparing the two works and
without cross-examination of the author or authors
of the alleged
infringing work. It suffices to say that this is not such a case.
Result
[53]
In the result the appeal is dismissed with
costs, such costs to include those consequent upon the employment of
two counsel.
M J D WALLIS
JUDGE OF
APPEAL
Appearances
For appellant:
A R Sholto-Douglas SC (with him B J Vaughan)
Instructed by:
Edward Nathan Sonnenbergs, Cape Town,
Symington & De Kok, Bloemfontein.
For respondent:
W R E Duminy SC (with him A E Erasmus)
Instructed by:
Cliffe Dekker Hofmeyr, Cape Town,
Claude Reid Inc, Bloemfontein.
[1]
For example ‘dog’, ‘run’
or ‘for’. In lexicographical usage the technical
expression to describe
these words is a lemma.
[2]
For example a word may be both a noun and a verb,
as with ‘boil’ denoting both a type of sore (the noun)
and the action
of heating some liquid to boiling point (the verb).
[3]
Media24 also produces a bilingual dictionary
under the name
Pharos Skoolwoordeboek
,
which was published in 2005 and is referred to in its application
papers. However, all the evidence in support of the complaint
of
breach of copyright related to the
Pharos
Aanleerderswoordeboek
. Accordingly the
judgment will refer only to that work.
[4]
For example the
Oxford Woordeboek
has the English word
‘salad’, but not its Afrikaans equivalent ‘slaai’.
Differing views are expressed
in the papers on whether this is sound
lexicographical practice but nothing turns on it.
[5]
For example the English word ‘desert’
may be a noun referring to an arid area of the world, as in the
Kalahari Desert,
or a verb referring to a person leaving their duty,
as in ‘the soldier deserts the regiment’ or ‘the
man deserted
his wife’.
[6]
For example the word ‘recognised’ may
mean that a person is seen and known to be a particular individual
as in ‘I
recognised my friend John’, or may mean allow
to speak, as in ‘The Speaker of Parliament recognised the
Minister
of Transport’. Afrikaans examples are the words
‘aan’, ‘af’, ‘agterkom’ and
‘almal’.
[7]
The
Webster’s Third New International Dictionary
(1985)
contains verbal illustrations to illustrate the usage of a word in
context and quotations using the word. Similarly the
1913
Webster’s Online Dictionary
(available at
www.webster-dictionary.org
)
contains both explanations of the meaning of words and quotations
illustrating their usage. Similar examples of this approach
can be
found in the major dictionaries published by the respondent and its
competitors.
[8]
For example there would be little point in illustrating the word
‘sang’ with the sentence ‘The a cappella group
sang a Gregorian chant’. A more appropriate sentence would be
‘Nkosi sang in the school choir’.
[9]
As occurred in
Fax
Directories
(Pty) Ltd v SA Fax
Listings CC
1990 (2) SA 164
(D).
There
is a famous example of that in the case of the
New
Oxford American Dictionary
(2005)
which listed the non-existent word ‘esquivalience’ and
gave as its meaning ‘the wilful avoidance of one’s
official responsibilities’. Apparently the word thereafter
found its way into a document emanating from the White House.
[10]
This echoed his client’s view in the founding affidavit that
‘Bogenoemde ooreenkomste is bloot té veel en
té
ooglopend om aan blote toevalle toegeskryf te word’. (The
above-mentioned correspondences are simply too many
and too
eye-catching to be ascribed simply to coincidence.)
[11]
See para (d) of the definition of ‘literary
work’ in s 1(1) of the Act.
[12]
Section 2(1)
(a)
of the Act.
[13]
Section 6
(a)
of the Act.
[14]
Section 23(1) of the Act.
[15]
Galago Publishers (Pty) Ltd and Another v
Erasmus
[1988] ZASCA 131
;
1989 (1) SA
276
(A) at 279G-280C (
Galago
Publishers
).
[16]
Baigent & another v The Random House Group
Ltd
[2007] EWCA Civ 247
para 141 (
Da
Vinci Code
).
[17]
Govindan v Gopalakrishna Kone
1955 AIR 391
(Mad).
[18]
Galago Publishers
supra at 286D.
[19]
Galago Publishers
supra at 293B-C.
[20]
Francis Day & Hunter Ltd & another v
Bron (trading as Delmar Publishing Co) & another
[1963]
Ch 587
;
[1963] 2 All ER 16
(CA) at 22.
[21]
Ibid at 25C.
[22]
Ibid at 27D-E.
[23]
The statistical analysis by Professor Dunne on behalf of OUP showed
that the headwords common to both dictionaries numbered between
50%
and 60% of the total number of headwords in each. Of these Professor
Kidd’s analysis indicated that around 20% contained
example
sentences that exhibited correspondences according to Dr Prinsloo.
The OUP publication had slightly fewer than 10 000
headwords.
On these figures therefore between 1000 and 1200 cases of example
sentences exhibiting correspondences would be present.
For reasons
that emerged from Professor Dunne’s evidence that may be a far
smaller proportion of the total number of example
sentences.
[24]
Kevin Garnett, Gillian Davies and Gwilym Harbottle
Copinger and
Skone James on Copyright
15 ed (2005) para 7.22, p 380.
[25]
Copinger and Skone James
supra para 7.17.
[26]
This is what Professor Taljard referred to as decoding the meaning
of words.
[27]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A) 634D-635D;
Thint (Pty) Ltd v
National Director of Public Prosecutions and Others
[2008] ZACC
13
;
2009 (1) SA 1
(CC) paras 8-10;
National Director of Public
Prosecutions v Zuma [
2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para
26
[28]
National Scrap Metal (Cape Town) (Pty) Ltd and Another v Murray &
Roberts Ltd and Others
[2012] ZASCA 47
;
2012 (5) SA 300
(SCA)
para 22.
[29]
Dexion Europe Ltd v Universal Storage Systems
(Pty) Ltd
[2002] ZASCA 97
;
2003 (1) SA
31
(SCA) para 15.
[30]
IPC Media Ltd v Highbury-Leisure Publishing Ltd
[2004] EWHC
2985
(Ch);
[2005] F.S.R. 20
at para 11 (
IPC Media
).
[31]
Forty percent of the words were not common to both dictionaries and
at most twenty percent of the words that were common, that
is, one
fifth of the remaining sixty percent (twelve percent of the whole),
had correspondences in the example sentences. Eighty
eight percent
of the dictionary must therefore have been original work.
[32]
If one assumes that each compiler A, B and C was as likely to copy
as not to do so, there are eight possible combinations ranging
from
none of them copying to all of them copying. The likelihood of all
of them copying would therefore be 1 in 8. If one of
them was less
likely to fall prey to the temptation of copying so that given their
background and character, the likelihood of
that one not copying was
70% and the likelihood of their copying 30%, the likelihood of all
three copying falls to 3 in 40. With
two such stronger characters it
falls to 9 in 200 and if all three are of that ilk it becomes 27 in
1000.
[33]
Galago Publishers
;
Govindan v Gopalakrishna Kone
supra and
Designers
Guild Ltd v Russell Williams (Textiles) Ltd
[2000] UKHL 58
;
[2001] 1 All ER 700
(HL).