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[2015] ZAWCHC 68
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Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd (23368/12) [2015] ZAWCHC 68; [2015] 3 All SA 478 (WCC); 2015 BIP 384 (WCC) (21 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE
CASE
NO: 23368/12
DATE:
21 APRIL 2015
REPORTABLE
In
the matter between:
MEDIA
24 BOOKS (PTY)
LTD
...............................................................................................
Applicant
And
OXFORD
UNIVERSITY PRESS SOUTHERN AFRICA (PTY)
LTD
.............................
Respondent
JUDGMENT
DELIVERED 21 APRIL 2015
GAMBLE,
J:
INTRODUCTION
[1]
The Respondent (“
OUP
”)
is a South African publisher of a variety of literary works including
dictionaries, in this case for use by school learners.
Its parent
company in the United Kingdom is the publisher of one of the world’s
most recognised set of dictionaries: a dictionary
that is a household
name and, further, which is often consulted in litigation where the
meaning of words is sought or explored.
[2]
The Applicant (“
Media
24
”) is the print media arm of a
large listed media company, Naspers Limited. Media 24
publishes, inter alia, dictionaries
for the local market through one
of its trading arms known as “Pharos Dictionaries”.
Pharos’ list of titles includes
monolingual Afrikaans
dictionaries, as well as bilingual Afrikaans–English/English –
Afrikaans dictionaries, also for
use by school learners.
[3]
In 1993 Tafelberg Publishers Limited, the
predecessor of NB Publishers Limited, published a bilingual
dictionary for use by school
learners called the “
Tweetalige
Aanleerderswoordeboek
”. This was
followed by a revised edition in 1998 under the Pharos title and
another edition in 2006 which was re-packaged
as the Pharos
“
Learner’s Dictionary for
Schools
”.
[4]
In 2007, OUP published its
“
Afrikaans-English/
English-Afrikaans School Dictionary”,
whose
front cover incidentally contains the by–line “
the
world’s most trusted dictionaries”.
[5]
In October 2011 NB Publishers Limited (as
Tafelberg was then known, and an entity ultimately subsumed in the
corporate structure
of Naspers) began work on a new Pharos bilingual
Learner’s Dictionary. In that process , it says, it discovered
that OUP
had apparently copied certain of its earlier titles, thereby
breaching its rights of copyright under the Copyright Act, 98 of 1978
(“
the Act
”).
OUP disputed that claim and Media 24 then approached this court on
application for interdictory relief restraining OUP
from infringing
its copyright in its Afrikaans English Learner’s Dictionary for
Schools by making any reproductions and/or
adaptations thereof, in
particular, by the publication and/or sale of its Oxford
Afrikaans-Engels/ English/Afrikaans School Dictionary.
OUP denies
that it is in breach of copyright as alleged.
[6]
At the hearing of this matter, Media 24 was
represented by Advs. AR Sholto-Douglas SC and BJ Vaughan, while Advs.
WRE Duminy and
A Erasmus appeared on behalf of OUP. The court is
indebted to counsel for the detailed heads of argument and
presentations in court,
which have facilitated the preparation of
this judgment.
THE REQUIREMENTS FOR
FINAL INTERDICTORY RELIEF
[7] Media 24 has adopted a
fairly bold stance in this application. While it is evidently intent
on later persuing a claim for damages
against OUP for breach of
copyright it seeks interdictory relief in the meanwhile. This it does
by way of an application for final
relief (launched in 2012) rather
than an interim interdict
pendente lite,
which is the more
customary route. I need not speculate as to the basis for this
tactical decision other than to surmise that it
possibly perceived
that it would have had difficulty in establishing the requirements of
a satisfactory alternative remedy and/or
the balance of convenience
that are necessary for success in applications for temporary relief.
[8] In seeking a
final interdict Media 24 must establish a clear right. This it does
by asking the court to make a final determination
, firstly , of its
rights of copyright in relation to its work , and , secondly , of a
breach thereof by OUP.
[1]
Having chosen to do so by way of application it is bound by the well
known approach set out in
Plascon-Evans
read with
Zuma
.
[2]
[9] In
Plascon-Evans
Corbett JA reformulated the correct approach thus at 634 H-I:
“
It is
correct that , where in proceedings on notice of motion disputes of
fact have arisen on the affidavits , a final order , whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits which
have been admitted
by the respondent, justify such an order. The power of the Court to
give such final relief on the papers before
it is, however, not
confined to such a situation. In certain instances the denial by the
respondent of a fact alleged by the applicant
may not be such as to
raise a real, genuine, or
bona
fide
dispute of fact (see in
this regard
Room Hire Co(Pty) Ltd
v Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 (T) at 1163-5; Da
Mata v Otto NO 1972(3) SA 858 (A) at 882D-H)
.
If in such a case the respondent has not availed himself of his right
to apply for the deponents concerned to be called for
cross-examination
under Rule 6(5)(g).….and the Court is
satisfied as to the inherent credibility of the applicant’s
factual averment
, it may proceed on the basis of the of the
correctness thereof and include this fact among those upon which it
determines whether
the applicant is entitled to the final relief
which he seeks…..Moreover, there may be exceptions to this
general rule ,
as for example , where the allegations or denials of
the respondent are so far-fetched or clearly untenable that the Court
is justified
in rejecting them merely on the papers…”
[10] And, in
Zuma
Harms DP concisely stated the approach as follows at 290D:
“
[
26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant’s…affidavits , which have been admitted by
the respondent…, together with the facts
alleged by the
latter, justify such an order. It may be different if the
respondent’s version consists of bald or uncreditworthy
denials, far-fetched or so clearly untenable that the court is
justified in rejecting them merely on the papers.”
[11] In the context of the
case at hand, Media 24 asserts copyright in its work under the Act.
As will be demonstrated hereunder,
that claim is admitted by OUP
insofar as the Pharos work is manifestly an original work of
compilation attributable to Media 24.
However, Media 24’s claim
for final relief is challenged by OUP on two levels. Firstly, there
is a general denial that it
has directly copied Media 24’s
work. Secondly, it says that Media has failed to establish the
originality of its entire work,
on the basis that, like OUP, it has
sourced the meaning and definition of some words and example
sentences in other reference works
to which both may have had access
in the process of compilation, or that example sentences chosen by it
are common practice and/or
common explanations over which Media 24
cannot claim exclusivity.
[12] A creditworthy denial
by OUP as regards plagiarism is, however, not the end of the enquiry
because , as will be demonstrated
later , the ultimate determination
as to whether copying has occurred is the function of the court upon
consideration of all the
material fact and circumstances.
[13] There are 2
further requirements which the court must consider before it may
grant Media 24 final relief. In the first instance,
Media 24 must
establish on a balance of probabilities what is customarily referred
to as an “injury” which has been
committed by OUP. This
is to be understood as an infringement of its copyright with
resultant prejudice – either actual or
potential.
[3]
[14] Then Media 24
must demonstrate that it has no adequate or alternative remedy
available to it. It is established law that a
party who might obtain
adequate redress through an action for damages may not be entitled to
an interdict.
[4]
[15] Finally, it is
said that once the aforementioned three requisites are met, the
court’s discretion to refuse a final interdict
is very limited
and will depend ultimately on the availability of an alternative
remedy.
[5]
THE REQUIREMENTS FOR
RELIEF UNDER THE ACT
[16] As just stated
, to obtain interdictory relief in this matter Media 24 must firstly
establish copyright in the “
Learner’s
Dictionary for Schools/ Die Aanleerders Woordeboek vir Skole
”
(herein after referred to as “
the
Pharos work
”) pursuant to the
provisions of Section 2(1) (a) read with the definition of “
literary
work
” in Section 1 of the Act.
Given that part (d) of that definition includes
a
‘dictionary’
, there is no
issue that the Pharos dictionary is indeed a literary work.
[6]
[17] Then, Media 24
must show that it is the owner of such copyright
[7]
.
Subject to the contention already mentioned that the Pharos work
lacks originality in certain respects, this issue is not in dispute
either.
[18] Finally, Media
24 must establish, on a balance of probabilities, that OUP has
unlawfully reproduced and/or adapted the Pharos
work (or a
substantial portion thereof), in compiling its Oxford Afrikaans-
Engels/ English-Afrikaans School Dictionary.
[8]
For the sake of convenience, I shall refer to the latter publication
as “
the OUP work
”.
It is this aspect, (unlawful reproduction/adaptation) which really is
at the core of the dispute between the parties.
[19] There is also a
procedural objection taken by OUP in which it claims that Media 24
cannot succeed by way of notice of motion.
It says that the nature of
the enquiry and the assessment of the expert evidence put up by the
parties is of such a nature that
the matter cannot be properly
decided without careful and thorough interrogation under
cross-examination. Given that Media 24 was
advised of this stance
prior to the filing of OUP’s answering affidavit, and given
further that it ignored the invitation
to convert the application
into action proceedings, OUP says that the application falls to be
dismissed without more.
THE APPROACH IN
COPYRIGHT INFRINGEMENT CLAIMS
[20] Counsel were in
agreement that the judgment of Corbett JA in
Galago
Publishers
[9]
is the leading authority on copyright infringement in our law. At 280
B-D the learned Judge of Appeal observed that:
“
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 that 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, i.e. 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
its own?”
[21] At 285 B-E
Corbett JA deals with the concept of “
the
reproduction of a substantial part
”
by referring to the speech of Lord Reid in the House of Lords in
Ladbroke
[10]
:
“
As to what
is meant by the reproduction of a substantial part of the plaintiff’s
work, I would simply refer to what was stated
in the Ladbroke case
supra by Lord Reid (at 469):
“
If he does
copy, the question whether he has copied a substantial part depends
much more on the quality than on the quantity of
what he has taken.
One test may be whether the part which he has taken is novel or
striking, or is merely a common-place arrangement
of ordinary words
or well-known data. So it may sometimes be a convenient shortcut to
ask whether the part taken could by itself
be the subject of
copyright. But in my view, that is only a shortcut, and the more
correct approach is first to determine whether
the plaintiff’s
work as a whole is “original” and protected by copyright,
and then to enquire whether the part
taken by the defendant is
substantial. A wrong result can easily be reached if one begins by
dissecting the plaintiff’s 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 have been exercised
in devising the arrangements
of the whole work, that can be an
important or decisive element in deciding whether the work as a whole
is protected by copyright.”
[22] As far as the
causal connection requirement referred to in the first passage is
concerned, a court considering the claim for
copyright infringement
must draw an inference from all the facts before it, and the absence
of a cogent explanation for the objective
similarity between two
works can lead to a strong inference that there has been copying, be
it conscious or subconscious.
[11]
THE COMPILATION OF A
DICTIONARY
[23] Dictionaries
are compiled by lexicographers
[12]
who customarily work in teams. In the case of Media 24 it made use of
a number of in-house personnel while OUP used freelance staff.
In the
answering affidavit Ms Megan Hall, OUP’s publishing manager for
dictionaries, describes in considerable detail how
the mammoth task
of compiling the Oxford school dictionary was undertaken. Firstly, Ms
Hall visited OUP in England in November
2003 to research, study and
discuss with various experts the compilation of both monolingual and
bilingual dictionaries. Then,
in 2004, she set about identifying,
testing, and briefing freelance personnel to fill a variety of roles
on the compilation team.
Ms Hall says, too that in this preparatory
phase a conscious decision was made by OUP to publish a bilingual
dictionary to compete
with the Pharos work.
[24] During 2004
Professor Daan Prinsloo, an expert in corpus–based lexicography
at the University of Pretoria was briefed
by OUP to provide the
Afrikaans and English “
headword
”
list. A headword
[13]
is the word which appears in alphabetical order in a dictionary and
in respect of which a definition and/or translation is given.
Prof
Prinsloo was responsible for drawing up two headword lists (one in
each language) which then formed the language database
(also referred
to as a “
corpus
”)
for each side of the dictionary. It is said that Prof Prinsloo’s
work enabled OUP to include a range of school subjects,
something
that was novel in the South African school dictionary market.
Ultimately, about 5000 headwords were selected on each
language side
of the dictionary.
[25] From November 2004
the freelance personnel went about compiling and developing the
entries for the dictionary. They made use
of innovative software
programmes, which have since become standard software for dictionary
compilation, both in South Africa and
internationally. I shall deal
with the work of these compilers in a little more detail below, since
it is at this level that Media
24 ultimately suggests that the
plagiarism probably occurred.
[26] Once each compiler
had completed her/his work it was returned to OUP whereafter it was
submitted to a translator. When the
translation was complete, the
work was checked and edited. Ms Hall says that she identified the
need for lexicographic expertise
to edit the compiler’s work
and Dr Phillip Louw, a co – editor at the monolingual
“
Woordeboek van die Afrikaanse Taal
” with a
doctorate in lexicography, was approached in October 2005 to assist,
initially on a freelance basis and later as
a full-time employee of
OUP.
[27] In the first half of
2006 OUP summited a final draft version of the dictionary to eight of
the nine Provincial Education Departments
in South Africa for
evaluation. All eight Provinces approved of the dictionary and orders
from them came in towards the end of
2006. In November 2006, the
unpublished dictionary was reviewed both externally and internally,
in the latter instance by Ms Hall
herself who effected final
corrections. The completed work was published in January 2007.
[28] Dr Wanda Smith, who
deposed to the founding affidavit on behalf of Media 24, is also a
lexicographer with many years experience-
she has worked for Media 24
for more than 15 years. She explains that the Pharos work was first
compiled in 1993 under the auspices
of Tafelberg who employed Ms
Madaleine du Plessis to undertake the task. As such, copyright vested
in Tafelberg, given that the
work was an original. As I have already
demonstrated, through a series of corporate takeovers and
restructuring exercises, it is
undisputed that such copyright now
vests in Media 24.
[29] Dr Smith says that in
October 2011 Pharos began compiling a new edition of the work and in
the process discovered , so Media
24 alleges, that large portions of
the work had been copied by OUP in the compilation of its dictionary.
This discovery was made
after,
inter alia,
OUP’s
dictionary had been reviewed by the compilers of the Pharos work: as
will be seen later, it is evidently common practice
for
lexicographers to consult competing titles when compiling a new work.
[30] Dr Smith refers
to four relevant terms in dictionary compilation. In addition to
“
headwords
”
and “
headword lists’
,
there are “
example sentences
”
[14]
,
and “
sense distinctions
”.
[15]
These can be illustrated by looking, for example, at the word
“
judge
”
in the OUP work.
“
judge
noun, verb.
Noun
(judges)
1.
Regter
·
The
judge
sentenced the criminal to ten years in
prison
Die regter
het die misdadiger tot tien jaar tronkstraf gevonnis.
2. Beoordeelaar.
·
Who will be the
judge
at the fashion show?
Wie sal die
beoordeelaar by die mode parade wees?
Verb
(judging, judged)
1. Uitspraak doen.
Hy het uitspraak
oor hom in die hof gedoen
.
[31] The word “
judge
”
is the headword taken from the headword list under the letter “
j
“. “
The judge sentenced the criminal to ten years in
prison
“,is the example sentence, and, the distinction
between a judge in a court of law and a judge in a fashion show
demonstrates
the various sense distinctions (primary and secondary)
in which the noun can occur.
[32] For the sake of
completeness, I point that on the Afrikaans side of the OUP work one
finds;
“
regter”
naamwoord
(regters)
judge
.
·
Die regter moet beslis of die man
skuldig is of nie.
The judge must decide
whether the man is guilty or not.
“
Beoordeel
”
werkwoord
(het
beoordeel)
judge
.
·
Ons skoolhoof gaan die kompetisie
beoordeel.
Our principal is going
to judge the competition.
·
Hulle het die inskrywings baie
streng
beoordeel.
They judged the entries
very strictly…”
[33] I would add in
passing that, given that neither ”
judge
”,
“
regter
” nor “
beoordeel
”
were considered by Media 24 to be sufficiently relevant or
interesting to learners to be included in the work, there can
manifestly be no question of plagiarism in that regard.
ALLEGATIONS BY MEDIA
24 OF COPYING
[34] In the founding
affidavit, Dr Smith explains how Media 24 set about analysing OUP’s
work once it formed the view that
plagiarism had occurred. It
appointed Dr Anton Prinsloo, an independent lexicographer and
language consultant to compare the competing
works. Dr Prinsloo,
firstly, drew random samples of headwords from both dictionaries. The
criteria for the randomness of the samples
were in turn monitored and
verified by Prof Martin Kidd , a statistician from the University of
Stellenbosch.
[35] Secondly, Dr Prinsloo
compared headwords beginning with the letters “B”,
“D”,”I” and
“S” only on
both sides of each dictionary. The comparison was limited to these
four letters because it was considered
impractical to review the
entirety of the various headwords, said to number about 5000 per
language entry.
[36] Making use of various
coloured high-lighter pens Dr Prinsloo then considered the following;
36.1Common
headwords (which he marked in green);
36.2 Alleged
similarities in sense distinction and the sequence (primary and
secondary etc) in which these were set out (marked
in orange);
36.3 Alleged
similarity in regard to example sentences (marked in pink); and
36.4 The alleged
absence of similarity in definitions and example sentences with
common headwords (marked in yellow).
[37] This expert refers
the court to the word “
baie
” and says that in the
Pharos work the example sentence is “
daar is nie baie
melk
oor nie
”, while in the OUP dictionary it is “
daar
is nie baie
sap
oor nie
”. It is
implied that direct copying has occurred in the OUP example sentence,
save that the noun has been changed from “milk”
to
“juice”.
[38] Dr Prinsloo
thereafter drew up extensive lists of the allegedly-copied example
sentences in relation to the headwords listed
under each of the four
letters referred to above. These were provided to Prof Kidd for
statistical analysis as to the co-incidence
of comparison between the
two works. In coming to his conclusions, Prof Kidd was told to ignore
any coincidence in the choice of
headwords, or the sequence of
translations and to focus solely on the similarities in example
sentences.
[39] Prof Kidd came to the
conclusion that the coincidence of similar example sentences in the
OUP work was of the order of 20%
when compared with the Pharos work,
and about 22% in the Pharos work when compared with the OUP work.
Comparison of the English
words in the Pharos work on a non-random
basis with the OUP work was found to be of the order of 17% and about
23% in respect of
the Afrikaans side of the Pharos work when compared
with the OUP dictionary. Prof Kidd says that the degree of similarity
(generally
then at around 20%) is too obvious to be classified as
merely coincidental.
[40] Dr Smith goes further
than the comparison of just example sentences. She points out that
there are also incidents of the copying
by OUP of poor grammar and
the incorrect classification of words, which are lexicographically
errant on the side of Media 24. I
shall cite just one of the several
examples discussed by her in which she stresses the importance of
translating a verb with a
verb and a noun with a noun.
[41] Pharos translates the
headword “
diefsta
l” firstly as “stealing”
and then “theft”. Dr Smith says that this is
grammatically unsound as “stealing”
is a verb and should
not be used to translate a noun, which “
diefstal
”
is. She says that the only translation for “
diefstal
”
is the noun “theft”. The repetition of these mistakes in
OUP’s work, says Dr Smith, is therefore not mere
coincidence,
but clear evidence of copying by OUP.
[42] In September 2012,
OUP also published a monolingual Afrikaans School Dictionary to
compete with Pharos’ similar title.
Here too, says Dr Smith, is
persuasive evidence of plagiarism. I return to the headword “baie”.
The Oxford Monolingual
Afrikaans dictionary repeats the earlier
example sentence with reference to “
nie baie sap nie
”
which it used in the OUP work. This is said to demonstrate the
persistence of plagiarism.
[43] Finally, Dr Smith
says that sales of the Pharos work dropped markedly after 2007 and
she attributes this directly to the emergence
of the OUP dictionary.
For that reason, she says that Media 24 intends claiming damages from
OUP, but in the interim, it seeks
a final interdict to limit the
on-going breach of its copyright by OUP.
OUP’S RESPONSE
TO THE CLAIMS
[44] OUP denies outright
that it is guilty of copying or reproducing any parts of the Pharos
work. It emphasises that, in light
of the nature of the literary
works involved, some degree of similarity might be expected and that
evidence thereof would not necessarily
sustain a claim of plagiarism.
[45] OUP relies heavily on
expert opinion in its endeavour to rebut Media 24’s assertions.
Firstly, there is Prof Prinsloo
to whom reference has already been
made. Then there is a detailed affidavit by Dr Michael Rundell, an
expert lexicographer and
consultant from the United Kingdom, who is,
inter alia
, the Editor- in -Chief at Macmillan Dictionaries in
London, and a visiting professor at various universities around the
world.
Thirdly, OUP has called into service Prof Tim Dunne, a
statistician from the University of Cape Town with more than 30
years’
experience. There are further expert reports by Prof
ElsabeTaljaard, a lexicographer from the University of Pretoria, and
Dr Philip
Louw.
[46] Dr Rundell observes
that both works are relatively small dictionaries, each with about
5000 words per side. They are said to
be pedagogical dictionaries for
use by second language learners and contain relatively low levels of
language proficiency. Importantly,
says the expert , both works are
reference materials, unlike, for example novels or songbooks. And, as
already noted, both aim
to attract the interest of the same target
market. Dr Rundell is of the view that repetition by OUP is often
based on the selection
of similar headwords for which the most common
example sentences have been chosen. I will cite just two of his
explanations.
[47] The headword “
broom
”
has the following example sentence in the Pharos work: “
Doreen,
please take the broom and sweep out the kitchen
”. In the
OUP work the example is “
Take the broom and sweep the floor,
please
”. In respect of each of these headwords, there is
only one example sentence. As Dr Rundell points out “
Both
[example sentences] refer to using a broom to “sweep”:
this is what brooms are for
.”
[48] Then, there is the
headword “
spring
”. In the Pharos work there is
only one example sentence in respect of “
spring”
used
as a noun: “
spring is the season between winter and summer.”
In the OUP work, “
spring
“is cited both as a
noun and a verb. And, in respect of the noun there are three example
sentences one of which also reads
“
spring is the season
between winter and summer
”. As to this obvious similarity,
Dr Rundell holds the view that “
in many monolingual English
dictionaries this precise formula is used as a definition of
“spring
”, the clear implication being that this
example sentence, if it has been copied, may have been sourced in a
work other than
the Pharos work. And, it may be that Pharos, too,
consulted the same source material as OUP.
[49] The other example
sentences for “
spring
” in the OUP work are “
a
spring is usually made of metal
”, and “
we get
water from the spring on the farm
”. I shall revert to the
use of multiple example sentences, later but merely observe at this
stage that it does appear in
a number of instances that OUP employs
the technique of the use of multiple example sentences more often
than Pharos. Finally,
in several of the instances of plagiarism
complained of by Dr Smith, the allegedly similar example sentences
presented by OUP are
located amongst a number of others which are
entirely different.
[50] Prof Dunne issues a
warning regarding the use of what he calls “
after-the-fact
determinations of statistical causality
”. The process of
analysis, he says , “
needs to take into account all
plausible factors that could have affected the data, including those
factors that might easily be
overlooked.”
[51] In relation to the
coincidence of similar headword use, Prof Dunne makes a number of
observations. Firstly, he says he found,
with reference to the
letters B, D, I and S that 712 headwords were common to the Afrikaans
side of each dictionary. Then he found
at least 589 headwords that
were unique to the Afrikaans side of the OUP dictionary and 349
headwords, which were unique to the
Afrikaans side of the Pharos
work. From a percentage point of view, Prof Dunne found that 54, 7%
of the OUP headword list was shared
while at least 45% of the list
was unique to OUP. Conversely 67, 1% of the Pharos headword list was
shared with OUP while at least
32, 9 % of the list was unique to OUP.
It seems as if this view of Prof. Dunne lead to Pharos reconsidering
reliance on plagiarism
in respect of headword lists, something with
which Dr Smith dealt fairly extensively in the founding affidavit.
[52] Commenting on this,
Prof Dunne highlights the following aspect:
“
82.
This level of uniqueness in the
Afrikaans/English (B D I S) sides of the two dictionaries has to
impact upon the levels and extent
of any plagiarism mooted. The
question is why would a system that can construct at least 589 words
completely absent from the Aanleerderswoordeboek
bother with
selection of 712 words out of 1061, and then painstakingly obscure
matchings of example sentences, but nonetheless
leave matchings of
some 212 of these 712 allegedly stolen entries open to designations
of [similarity].”
[53] This reasoning seems
to me to be quite persuasive. I need, however, say no more in regard
to the allege copying of headword
lists since it was common cause
during argument that Media 24 no longer relied on any claims of
plagiarism in that regard..
[54] As already suggested,
at the heart of Media 24’s complaint in the founding affidavit
was the alleged copying of its example
sentences. This copying was
said to consist of two distinct components
:
firstly, exact
copying of the relevant example sentence (as one sees in the “spring”
example referred to in para 48
above) and, secondly, substantial
copying of the Pharos work but with the substitution of different
words chosen by OUP. One such
example appears in the “
melk”
and “
sap”
examples already referred to above.
[55] For purposes of
discussion and evaluation, Prof Dunne refers to the similarities
identified by Dr Prinsloo as the “
Prinsloo- similarities
”
and that those of Prof Kidd as the “
Kidd-similarities
”.
Prof Dunne draws attention to the fact that, in the main, the OUP
work has close on two example sentences per headword
in comparison to
Media 24’s single example sentence:
“
86
I
note that the number of example sentences per headword within the
Oxford Skoolwoordeboek entries appears from a cursory inspection
to
be plausibly close to two on average, in contrast to 2601
Afrikaans-English and 2400 English-Afrikaans example sentences for
1680 and 1426 B D I S entries respectively in the
Aanleerderswoordeboek, which therefore have lower averages of example
sentences
per headword, in the order of 1.6 or larger
87 The effect of any
multiplicities of example sentences is a substantial decrease in the
probability of zero matches (dissimilarity)
within a chosen headword,
and a marked increase in the prospect of Kidd- or -Prinsloo
similarities. This increase will occur but
be due only to the
multiplicities; even if random matches are plausible as in the
circumstances outlined… [above]”.
An example of what Prof
Dunne is referring to is to be found in relation to the headword
“
spring” referred
to in para 48 above.
[56] Reverting to the
example sentences in respect of “
baie
”, in the
Pharos work the word has been referred to as a noun (with 5 senses
and 10 example sentences), an adverb (with 5
senses and 5 example
sentences) and a numeral with 1 example sentence. The OUP work
distinguishes only an adverb and a numeral.
The OUP adverbs define 4
senses with 8 example sentences, and the numeral, 3 senses with 5
example sentences. There are therefore
16 example sentences under
”
baie
” in the Pharos work, and 13 in the OUP work.
[57] In the founding
papers Dr Anton Prinsloo refers to 4 such example sentences in aspect
of the headword “
baie
”.
57.1 Firstly, “
I
like Theo very much: he’s a nice chap
” in the Pharos
works is compared with OUP’s quote “
I like him very
much”
. This is said by Dr Prinsloo to be an example of a
direct copy, whereas it appears to be a sentence wherein the subject
is changed
but the gist of the sentence remains the same.
57.2 Secondly, it is
correctly pointed out that “
thank you very much for your
help!”
in the Pharos work is taken up identically in the
OUP work.
57.3 Then “
daar
is nie baie melk oor nie
” in the Pharos work is said to be
identical to “
daar is nie baie sap oor nie
” in the
OUP work; and
57.4 Finally, Pharos’
“
sy het op haar verjaarsdag baie presente gekry
”,
is said to be identical to the OUP’s “
Nkosinathi het
baie presente gekry
”
[58] Assuming for
the purposes of argument that all 4 OUP example sentences are indeed
identical (which quite arguably they are
not), the fact remains that
only four of Pharos’ 16 example sentences have been copied by
OUP. This appears to equate to
25% of the Pharos work in respect of
the headwork”
baie
”.
[59] Prof Dunne offers
the following initial comments in this regard.
“
19…
It is feasible that many similarities emerge, because it is an
intention of dictionaries to reflect common usage. Some
of these
similarities might be more striking than others. Such extreme
coincidences may admit several possible single or multiple
causative
explanations. These explanations may involve prior occurrences,
including but not limited to frequency of usage, context
of usage,
common source corpora, commonly used expressions, or indeed copying.
20. Identical entries
appeared to constitute a minimal subset within the reported
similarities. This limited extent obviates against
inferences of
simple lifting of text from one source to another.
21. Similarities, as
subjectively perceived will admit the same prior single or multiple
causative explanations as are applicable
to extreme coincidence, such
as in happenstance identical entries.
22. Any vagueness of
similarity criteria will involve or permit intrusion of retrospective
elements driving towards subjective declarations
of near equavalence.
Where the retrospective criteria are unspecified or implicit rather
than explicit and specific, they may be
difficult to detect,
communicate, replicate and verify.
23. The criteria are
the collective set of features whose presence within both
dictionaries’ entries for the same word may
lead an interested
party to report either a similarity or dissimilarity.
24. Different parties
may adopt distinct criteria and their contrasting views of the same
objective data source will lead to distinct
subjective overviews and
inferences. To explore data appropriately it is not sufficient to
examine number and count alone, but
also the criteria by which
element of the count was derived, and the connection of that element
with the reality of its putative
source.”
[60] And in conclusion,
Prof Dunne offers his evaluation (from a purely statistical
perspective) of the likelihood of plagiarism
by OUP or not :
“
90.
Further similar remarks apply to English-Afrikaans as to Afrikaans
-English structures. Firstly, both dictionaries have substantially
sized bodies of unique headwords. The limited common internal
structures and the various identified school-oriented purposes may
give rise to natural similarities in the common segments. This
natural emergence of similarities will be exacerbated and appear
more
frequent than it really is if the analysis ignores the multiplicities
of senses for a single headword that necessarily reduce
the
probability of no-match outcomes.
91. At face value the
two B D I S analyses suggest strong parallels of the two language
sides, with respect to unique and common
parts. If plagiarism is to
be sustained as an inference, there will also need to be a plausible
single explanation for plagiarism
across both these B D I S sides in
their entirety. The explanation will have to deal with the current
inherent two-fold exaggeration
of percentages for headword
similarities arising from multiple entries, and with the elimination
of unique headwords from discussion.
The explanation will have to
robustly defend the criteria of a very weak form of observable
similarity (i.e. Prinsloo- similarity)
as an unassailable artefact of
plagiarism alone, and the exaggerative effects of such loose criteria
on the associated counts and
percentages reported.
92. Such an explanation
will need to address issues of motive, generality of alleged
artefacts across compilers, conspiracy to plagiarise,
conspiracy to
obscure plagiaristic forms of identical entries through deliberate
reduction of common headword entries towards
mere
similarities, and establish plausibility of these activities in both
language directions. It will have to perform these
functions against
a host of more compelling professional and societal factors which
apparently constitute far more plausible contending
explanations for
the same data.
93. None of these
conditions has been satisfied yet and there is no statistically sound
basis for selecting plagiarism as the only
or the most probable or
even a likely explanation”.
[61] In his affidavit Prof
Dunne also discusses the choice of random and non-random sampling
used by Media 24. It appears that the
random choice employed by Prof
Kidd was a random choice of page numbers in the works using a
computer- based spread sheet programme
and then 4 locations on each
of the chosen pages. Prof Dunne expresses some reservations about
this process but appears, in the
main, to be satisfied with the
integrity thereof. The non- random sampling appears to be the work of
Dr Anton Prinsloo and is the
choice of headwords commencing under the
letters B, D, I and S . Prof Dunne refers to these as the “Prinsloo
– similarities”.
[62] Prof Dunne makes the
following general observations in relation to the similarities
identified by Prof Kidd and Dr Anton Prinsloo.
“
52.
The
frequency of Kidd-or Prinsloo-similarities does not warrant an
inference of plagiarism. While plagiarism, if and when it occurs
may
give rise to very strong forms of Kidd-or Prinsloo- similarities, the
converse, from particular to general, does not necessarily
apply.
53. On the basis
of these arguments, Prof Kidd’s analysis may be internally
consistent. However, its relevance to any claim
of plagiarism has to
rest completely on the validity of either the Kidd-or-Prinsloo-
similarities as substantive and conclusive
evidence for that purpose
of eliminating all explanations other than plagiarism for the shared
headwords. The presence and the
counts of headwords that are unique
to each dictionary will also have to be explained within an
invocation of plagiarism. I deal
with this issue in the next
section.”
[63] Prof Dunne further
called for a third dictionary to be compared as part of his analysis
and was furnished with a spread sheet
analysis relating to the
Longman Handboek vir die Afrikaanse Taal (“
the HAT
”),
a far larger monolingual Afrikaans dictionary with 14503 entries. His
assessment was that there were in fact more similarities
in the
Pharos than the OUP work when these works were compared to the HAT.
Having assessed the HAT also, Prof Dunne concluded as
follows:
“
62.
Given
the larger word count of the Oxford Skoolwoordeboek, the modest
frequencies of Prinsloo-similarities, the softness of those
criteria,
the unspecified nature of the Kidd- similarities, and the necessities
for dictionaries to address common word usage and
common target
users, there appears to be very little statistical evidence in favour
of even a loose definition of plagiarism at
work in this state of
affairs.”
ASSESSING THE
EXPERT EVIDENCE.
[64] In the recent
judgment in the
National Potato
Co-Operative case
[16]
the Supreme Court of Appeal revisited,
inter
alia
, the function of the expert
witness in litigation, and the manner of evaluating such evidence.
The court stressed, with reference
to
Gentiruco
[17]
and
Coopers
[18]
that such evidence is admissible when the court is able to avail
itself of “
appreciable help
”
from an expert where such person by reason of specialist knowledge
and skill, is better qualified to draw inferences from
the proved
facts than the trial judge.
[65] In
Coopers
,
Wessels JA observed as follows at 370 G-H:
“
There are
some subjects upon which the court is usually quite incapable of
forming an opinion unassisted and others upon which it
could come to
some form of independent conclusion, but the help of an expert would
be useful
.”
[66] Both Professors Kidd
and Dunne are highly qualified and experienced in the field of
statistics. The real purpose of the statical
evidence in this case is
not to afford the statisticians an opportunity to express a view as
to whether OPU has breached Media
24’s copyright by
plagiarising its work (for that is pre-eminently the terrain of the
lexicographer and the linguist), but
rather to give the court some
idea of the numerical percentage of the incidence of such alleged
copying in the instant case. After
all , it cannot be expected of the
court to trawl through more than 20 000 entries (5 000 per side in
each dictionary) to assess
the similarity between example
sentences and senses. The task would simply be too immense. Indeed,
it is so immense that
neither party has tendered evidence from a
lexicographer who has done just that. The sampling of similarities by
Prof Kidd and
Anton Prinsloo, and the statistical recurrence thereof
was seen by Media 24 as the most suitable and reliable way of
establishing
the extent of the alleged copying in its founding
papers.
[67] Inherent in the
approach adopted by Media 24 to litigate by way of application is the
limitation imposed on the court through
the receipt of such evidence:
ordinarily a court would want to enjoy the benefits of such a witness
being cross-examined by the
opposing camp and answering questions in
clarification of the court’s own difficulties in adjudicating
the dispute. Very
often, that exercise would demonstrate whether the
expert is truly independent rather than being the proverbial “hired
gun”
, and , most importantly permit the court to grapple ,
first hand as it were, with the issues it was being asked to resolve.
[68] At an early stage of
these proceedings before the filing of an answering affidavit, OUP’s
attorneys suggested to their
opponents that the matter be sent to
trial with the founding papers to stand as a simple summons with a
declaration to follow.
However, Media 24 dug in its heels and
insisted on the matter proceeding by way of application. The
consequences of the matter
proceeding thus is that the court is
confronted by two sets of opinion evidence each based on the facts
put up by the applicant
as synthesised (and amplified) by the facts
put up by the respondent. Where those expert views are based on
sound reasoning
and are equipoised how is the court to determine
preference applying the approach laid down in the
Potato
Board
case?. Most certainly, the rule in
Plascon- Evans
should not
be applied, for that approach is to determine disputed facts not
opinion.
[69] While much of what
Prof Dunne has said is not disputed in reply, and while many of his
conclusions make emminent sense and
follow logically, I am
nevertheless reluctant to decide this matter of the strength of
expert opinion. The case involves technical
issues of lexicography
and the statistical relevance (or irrelevance) of that science of
coincidences and similarities in the content.
There are a number of
issues, which I would prefer to be clarified before expressing a
definite preference for an opinion one way
or the other. For example,
how similar linguistically and lexicographically are the “
melk”
and “
sap”
examples? And how can one determine
without proper interrogation through questioning of the experts how
much of the Pharos work
was procured lawfully from the same source as
the OUP work. These are trenchant questions which remain unanswered
and which undoubtedly
will be considered when the trial for damages
proceeds.
[70] In the result I
have come to the view that, given the technical nature of the issues
involved, it would not be appropriate
for the court to decide the
case on the strength of the expert reports on affidavit. The matter
must accordingly be determined
in accordance with the
Plascon-Evans
rule with due regard for the onus which Media 24 has attracted by
moving for final interdictory relief.
SUFFICIENT OBJECTIVE
SIMILARITY?
[71] In the passage in
Galago
to which I have already referred, Corbett JA stressed
that it was for the party claiming copyright protection to persuade
the court
that there was “sufficient objective similarity”
between the alleged infringing work and the original , or more
specifically,
that “a substantial part” of the Pharos
work has been copied by OUP. But, how much is required for the
plagiarism to
be regarded as “substantial”? Prof Kidd’s
evidence suggests a coincidence of example sentences at around 20%.
That implies that one in every five example sentences in the OUP work
is the same (or substantially similar) to the Pharos work.
However,
as Prof Dunne suggests the selection criteria for similarities relied
upon by Prof Kidd may be flawed: it is certainly
open to criticism,
as Prof Dunne has purported to do.
[72] In his
objective evaluation, Dr Rundell seems to have conceded a similarity
ratio of around 7%. In such circumstances, is the
repetition of every
14th example sentence then “substantial”? And, even if it
is substantial is it as a consequence
of copying by OUP’s
lexicographers or is there some other similarly feasible explanation?
After all, as the leading authority
[19]
in the English law of copyright points out, one is concerned here
with the quality or importance of copying rather than the quantity
thereof.
[73] It is common cause
that when preparing a new work lexicographers will have regard to a
variety of other dictionaries as source
or reference material. In my
view it is critical in this case to bear in mind, also, that we are
dealing here with a reference
work for use by the general public, and
in particular school learners, and that there would therefore exist a
fairly well defined
body of knowledge (from traditional works to
on-line publcations and computer software) available to be utilized
by the compilers.
[74] On this score
Mr Duminy SC
referred the court to a conference paper written by John Williams, a
freelance lexicographer attached to the Open University at
Milton
Keynes in the United Kingdom, entitled “
The
Question of Plagiarism and
Breach
of Copyright in the Dictionary-making Process (with Particular
Reference to
the
UK)
”
[20]
The paper is manifestly not intended to be a legal treatise on the
topic. Rather, it serves to highlight the ethical and
very real
practical problems confronted by practitioners in this important area
of learning, while touching upon aspects of the
English law of
copyright. What the paper demonstrates is that at least 20 years ago
the question of plagiarism in respect of the
compilation of
dictionaries was anything but settled law in the United Kingdom. And,
given that neither party to these proceedings
was able to adduce any
subsequent authority relating to the unlawful copying of dictionaries
in either the United Kingdom or South
Africa, I must accept that the
position today is no different to what it is was in 1992. I shall
quote extensively from the paper
since it places the conundrum in its
true perspective.
[75] In the opening
section of his paper Williams sets the scene as follows:
“
1. POSING
THE PROBLEM
The question of
plagiarism or infringement of copyright poses particular problems in
dictionary publishing, distinct from those
faced by the general
publisher. Personnel at all levels of the dictionary-making process
from the company’s lawyers to project
managers and even
low-level freelance compilers- may from time have to make decisions
as to what constitutes, and what does not
constitute, an unacceptable
degree of copying from previously published dictionaries. Prima facie
cases of plagiarism may manifest
themselves in many different aspects
of the dictionary text: conventions of presentation, the headword
list, definition style,
not to mention the actual content of
particular definitions, examples, translations, and illustrations.
The
core of the problem resides in the fact that all lexicographers
working in a given language (or between two given languages)
are
covering essentially the same body of knowledge. Given that this body
of knowledge is itself linguistic in nature, and that
it is usually
incumbent upon the lexicographer to produce a text which documents
often by way of example typical meanings and usages,
it is probably
inevitable that dictionaries of broadly similar scope and aims will
contain comparable stretches of text that show
a degree of similarity
unacceptable in other areas of publishing. Off course, some leeway is
provided by the fact that dictionaries
come in different shapes and
sizes with different markets in mind, and each will carve out its own
particular section of
l
angue
appropriate to its own purposes. However, the
problem becomes particularly accute when a publisher sets out to
produce a direct
competitor to an already existing dictionary in
terms of size, number of headwords, and general focus of coverage.
Given that most working
lexicographers continually consult other dictionaries as a matter of
routine it is important that all personnel
involved in the
dictionary-making process should be in a position to decide, on some
kind of systematic and uniform basis, what
kinds of copying, if any,
are acceptable, and which are not. This is desirable not only in
terms of the strict legal requirements
of copyright, but also on
professional and ethical grounds. As a freelance lexicographer who
has worked for a number of different
companies, it is my suspicion
that, at present, no such basis for a common practice exists among
publishers of dictionaries in
the UK. This paper will set out the
results of my attempts to test that assumption, and it is hoped that
this may provide some
pointers towards establishing an agreed set of
ground rules determining the extent to which dictionary publishers
may legitimately
“borrow” from each other’s
publications without fear of litigation or professional acrimony.”
[76] In his discussion of
the applicable law in England Williams relies extensively on
Copinger
et al
,
“
The vital
question remains of what constitutes quality in dictionary-making.
The only commentator who comes near to tackling this
question is
Skone James, who includes dictionaries in the category of
”compilations”, along with gazetteers, arithmetical
tables, lists of football results, etc. Skone James recognises that
similarities between such works cannot be judged in the same
way as
similarities between, say, “original” works of
literature. In the case of such compilations, similarity is not
in
itself proof of breach of copyright, though it may be used to allege
such a breach. The onus would then be on the defendant
to show that
this similarity was not the result of copying; evidence might be
adduced from textual detail, or from the circumstances
in which the
text was produced. A successful defence might be that the similarity
was due to coincidence or “sub-conscious
copying”, though
the law is undecided on the latter.
The key criterion
throughout appears to be whether or not the copier has unfairly
appropriated the labour, energies and resources
of the compiler of
the source material “…the principle is that if one
person has, with considerable labour, compiled
the work from various
sources which he has digested and arranged, then a defendant who
instead of taking the pains of researching
the common sources and
obtaining his subject matter from them, simply makes use of the
other’s labour and adopts his arrangement
perhaps with only
slight variations, thus saving himself the pains and labour which the
other used, this will be an illegitimate
use.”(Skone James
1991, 187)
The precise
implications of these legal principles for working lexicographers are
not immediately clear, since none of the commentators
addresses
problems that are specific to dictionaries such as words that occur
in restricted environments, words or set phrases
with a single
standard translation, etc. However, one might hazard a few tentative
conclusions. Firstly, that definitions, examples,
translations, etc
which “spring readily to mind”, casual phrases used to
fill out examples and standard conventions
of presentation would
probably not be subject to copyright protection, whereas, for
example, more “difficult“ definitions
and translations
and more innovative types of presentation probably would. Secondly,
as the above quotation makes clear, that minor
variations and
otherwise plagiarized text could not be used to refute allegations of
breach of copyright. Thirdly, that the practice
routinely adopted by
working lexicographers of having the dictionaries of our competitors
open in front of us makes it more likely
that a prosecution for
breach of copyright would be successful.
The above
remarks, however, probably beg more questions than they answer; the
fact that dictionaries do not figure at all prominently
in legal text
concerned with copyright is a serious handicap to anyone wishing to
formulate a legally watertight set of guidelines
for
dictionary-makers.”
As I have said, the
Williams paper was not intended to contribute to legal writings on
the topic, but it does, nevertheless, neatly
sum up the legal and
ethical dilemnas confronting lexicographers in the preparation of new
competing works.
[77] Applying the issues
raised by Willaims by way of a general approach to the case at hand,
the sort of questions that arise include
the following:
·
How many of the example sentences in
the OUP work (which are claimed to be direct copies of the Pharos
work) are the only plausible
or (possible examples) for those
headwords?
·
Is the switching of sentence
structure, or the substitution of words (be they nouns , adjectives
or adverbs ), in an example sentence
a lazy attempt to copy or a
deliberate distinction made by the lexicographer to avoid a complaint
of plagiarism?
·
Does the deliberate use of such
distinguishing words/phrases deprive the second work of originality?
·
If so, is it within the tolerable
limit of reproduction mooted by Williams?
·
Does the use of just one copied
phrase in the second work constitute similarity where the headword in
question in that second work
has been given a number of other example
sentences that are original?
·
How much of the Pharos work was
copied from other dictionaries by its compilers, and, therefore, how
much of the Pharos work claimed
to have been copied by OUP is the
product of original thought and industry on the part of Pharos?.
[78] Our law
requires a court determining an alledged copyright infringement to
adopt a common sense approach in evaluating the
question of
similarity
[21]
.
In
Copinger
et
al
[22]
the authors, in remarking that the question involves the application
of not all together precise legal standards to a combination
of
features of varying importance , postulate the approach thus:
“
The issue
of substantial part is a mixture of law and fact in the sense that it
requires the court to apply a legal standard to
the facts as found.
It is a matter of degree in each case and has to be considered having
regard to all the circumstances. In
the end it is often a
matter of impression, in the sense that it generally involves taking
into account a number of factors of
varying degrees of importance and
deciding whether they are sufficient to bring the whole within the
legal description of “substantial
part”, as to which it
may be difficult to give precise reasons for arriving at a conclusion
one way or the other. There are
always borderline cases over which
reasonable minds may differ.”
[79] Having observed
then that the “substantial part” test varies from case to
case and will largely depend on the type
of work involved, they
authors list a dozen or so general propositions to be considered.
[23]
In my view, relevant to this matter are the following:
“
(a) ….
(b)
The quality or
importance of what has been taken is much more important than the
quantity. The issue thus depends not just on the
physical amount
taken but on its substantial significance or importance to the
copyright work, so that the quality, or importance,
of the part is
frequently more significant than the proportion which the
borrowed part bears to the whole. In this context,
expressions such
as “quality” or “importance” need to be
properly understood. …Quality and
importance must
therefore be understood in terms of the features of the work, which
made it an original work in the first place.
It follows that the
quality relevant for the purposes of substantiality in the case of a
literary work refers to the originality
of that which has been
copied. In the case of an artistic work, it is the originality of the
artistic expression of that which
has been copied….
(c)
Depending on the circumstances, the question may depend on whether
what has been taken
is novel or striking or is merely a commonplace
arrangement of words or well-known material. In this respect, it may
be a helpfull
shortcut to ask whether the part taken could itself be
the subject of copyright, although this should not be used as a
substitute
for the proper and full test of substantial part…
(f)
In general it is wrong to dissect the claimant’s work, taking
each part
which has been copied and asking whether each part could be
the subject of copyright if it had stood alone: “ …it is
wrong to take the parts of the original copyright work that have been
copied in the alleged infringing work, to isolate them from
the whole
original copyright work and then to conclude that a substantial part
of the original copyright work has not been copied
because there was
no copyright in the copied parts on their own.” It
is the work as a whole which must be considered
particularly where
the originality of the work lies in the creation of the work as a
whole. If there is no originality in the creation
of the work as a
whole, for example, where the work is simply a collection of
subsidiary works assembled without any sufficient
skill or labour,
the proper analysis is that there is not one work but rather a number
of works. In such a case, it would be proper
to take each subsidiary
work by itself. But this is not a question of substantial part but of
identifying the real copyright work
or works in issue. A claimant
cannot divide “the work” into small sections, so as to
improve his case by
arguing
that
a substantial part of a small section has been taken.
(j)
If what has been taken from the claimant’s work is material
which was not original
to the maker of the work, because for example
it was copied from another work, then it should be disregarded in
deciding this issue.
If, however, part of the originality of the
claimant’s work consisted of the choosing and collecting of
unoriginal material,
and the defendant has made unfair use of this
labour and skill, then the test would be satisfied. This can often be
seen in compilation
cases but other types of works will also often
contain elements taken from earlier works but combined in a new way.
(k) Although statements
to precisely the opposite effect can be found, the relevant question
is not whether the part which has been
taken forms a substantial part
of the defendant’s work but whether a substantial part of the
claimant’s work has been
taken. Indeed, whether the part taken
forms either a small or a substantial part of the defendant’s
work is irrelevant….
(l) In the case of some
works such as works of reference, it may be that a greater amount of
copying is permissible than with other
works such as novels. This is
on the basis that one of the purposes of the author was to add to the
stock of human knowledge, so
that there may be attributed to him an
intention that the material in his work, if it is not to become
sterile, may be used by
the reader that with the consequence that the
law will allow wider use of such a work.”
[80] It is not
insignificant, I believe, that when
Copinger
et al
deal with the categories of literary works comprising that are termed
“
compilations
”
[24]
, the authorities relied on in respect of dictionaries,
encyclopaedias, etc refer to 19
th
century English cases dealing with educational books. The earlier
comment regarding the absence of any cases of copyright involving
dictionaries
per se
therefore
appears to be correct.
[81] One might ask
whether this is because publishing houses are reluctant to litigate,
or whether there is some other plausible
explanation. Given that the
general practice is that in compiling new work lexicographers, as a
matter of course, consult a variety
of other reference works,
including competing dictionaries, it may be that the role players do
not regard the consideration and
use of the sample sentences of
others to be offensive. This in turn maybe because the creator of the
alleged original work (as
with Pharos here) has, similarly made use
of earlier reference works and dictionaries
[25]
in an endeavour to enhance the “
stock
of human knowledge
”.
REVIEWING THE
COMPETING WORKS
[82] I have perused both
dictionaries in this matter and make the following observations.
Firstly, the page layout and references
are completely different as
annexures “A” (Pharos) and “B” (OUP) to this
judgment demonstrate. There can
certainly be no question of copying
in that that regard. Secondly, as far as the headwords are concerned,
while there are some
similarities there are also major distinctions.
And, as I have said, Media 24 no longer relies on any copyright in
respect of its
corpus or headwords.
[83] Turning to the
example sentences, I make the following observations. Firstly, there
are some
that are plainly identical:
83.1
“
South
” (adjective, adverb) –“
Namibia
is
south
of Angola
” ( OUP) “
Namibia
lies
south
of Angola
” (Pharos)
83.2 In respect of
“
suid
”
Pharos repeats the Namibian example while OPU does not- it has,
inter
alia
, “
the
four wind directions are north, south, east, and west
”
and “
the river flows from the
south to the north
.”
[84] .There are further
example sentences in respect of “
south
”,
“
southern,
” “
suide
” and “
suid
”
in both dictionaries, all of which are completely different from each
other, save for the Namibian similarity. So, for example,
Pharos, in
addition to the Namibian example, has the following example sentences
on the English side:
84.1 South
·
Port Elizabeth is in the
south
and Johannesburg in the north of our country;
·
Mossel Bay lies on the
south
coast of our country
.
84.2 Southern
·
Port Elizabeth lies in the
southern
part of our country
.
[85] OUP, on the other
hand, has only two entries on the English side, in addition to the
Namibian example:
·
Agulhas is in the
south
of the country.
·
The
south
coast.
There are no example
sentences in regard to
southern
.
[86] On the Afrikaans side
Pharos has, in addition to the Namibian example, the following
English example sentences:
86.1 Suide- South
·
Port Elizabeth lies in the
south
and Johannesburg is in the north of our country.
86.2
Suidelike – Southern
·
Port Elizabeth lies in the
southern
part of our country.
[87] OUP has the following
entries on the Afrikaans side in addition to the “
wind
directi
on
s”
example sentence referred to above:
Suid
“
South”
·
The river flows from the south to
the north.
·
The wind is from the south.
·
The compass points due south.
·
They live to the south of the
airport.
There is no example
sentence provided by OUP in respect of “
suidelik
”
which is just translated as “
southern
”.
[88] From these
comparisons a number of observations can be made:
88.1 The compilers of
OUP’s English side possibly copied the Angola/Namibia example
sentence from the Pharos work either on
the Afrikaans or English
sides, or both.
88.2 On the other hand
that compiler may have seen the same example sentence in another
dictionary, which was consulted during the
compilation processes, a
dictionary that was also possibly consulted by the compiler(s) of the
Pharos work. I would point out,
however, that given that no
particular allegation in regard to this example sentence is made in
OUP’s papers, this is no
more than judicial speculation in the
exercise of the court’s impression at this stage.
88.3 Certain of the
example sentences are obvious in the circumstances eg the locality of
Mossel Bay close to the southern most
tip of Africa at Cape Agulhas
is an example that anyone with a basic grasp of local geography might
consider.
88.4 The majority of
example sentences listed by OUP in respect of “
south
”,
“
southern
”, “
suid
” and
“
suidelike
” have no connection whatsoever with the
Pharos work , can be considered to be original work and fall to be
ignored for purposes
of the plagiarism complaint.
[89] The limited
coincidence of the example sentences to which I have just referred in
respect of “
south
”, “
suid
”,”
southern
”
and “
suidelike
” resonates throughout the OUP work
as the earlier reference to “
baie
” suggests: one
or two of the example sentences at most bear a similarity to those in
the original work, while the bulk of
them do not, with some being
quite novel and distinct. And, to revert to an earlier theme, does
the mere change of noun or object,
(“
there isn’t much
milk
left
” compared to “
there
isn’t much
juice
left)
” suggest
copying or intentional distinction?
[90] Ideally a court
pondering these alleged similarities and claimed distinctions would
wish to be assisted by both lexicogrpahers
and the statisticians as
to the underlying assumptions made (eg copy or intentional
distinction?) when drawing up the list of perceived
similarities (in
this case the so-called “Kidd similarities”). This all
the more so because , when paging through the
B D I and S headwords
of the OUP work , one is struck by the fact that the high-lighted
phrases designated by Dr Anton Prinsloo
as the alleged plagiarisms do
not appear to be anything like one in every five example sentences,
as the 20% figure presented by
Proff Kidd suggests.
[91] But assuming
that I am wrong in this regard and that there is in fact a fair
degree of copying
[26]
by OUP, the question that follows is how does such copying contribute
qualitatively to OUP’S work, as we see in cases such
as
Galago
and
Ladbroke
?
On this important aspect of the case, Media 24 is surprisingly
silent. Despite the plethora of opinions expressed on both sides,
no
one has come forward and explained to the court just how the alleged
copying has advanced the OUP publication as a literary
work at the
expense of the Pharos work.
[92] In the founding
papers Dr Smith makes certain bald allegations at the end of her
affidavit, stating that since the publication
of the OUP work in 2007
sales of the Pharos work have dropped drastically, and that Media 24
has continued to lose market share
with regard to its Pharos
dictionaries.
[93] Ms Hall deals
thoroughly with these allegations in the answering affidavit,
devoting some 20 paragraphs over 10 pages thereto.
I do not intend to
recite the full extent of her allegations herein. Suffice it to say,
Ms Hall claims that the OUP work is a far
more modern and up-to-date
work than the Pharos dictionary. She claims that in respect of
content the OUP work includes “
a wide range of vocabulary
important to school subjects as expressed in the official curriculum
documents or …. textbooks...”
She points out also
that the OUP dictionary has a completely different “
structure
of entries
” to the Pharos work and that on this score the
OUP work is more accessible to students and teachers since it follows
the
more traditional “
entry structure
” with which
readers are familiar.
[94] As far as design and
layout are concerned, says Ms Hall, the OUP work is more modern and
appealing through its use , for example
, of different fonts for the
headword and the body of the entry, markers offering clear
distinction, the placing of page numbers
and the use of “
guide
words
” at the top of every page (on the outside edge
thereof, as opposed to the Pharos work which has the commencing and
terminating
“
guide words
” at the left and right
top edges of each page.) Once again annexures A and B hereto
demonstrate the distinctions. Also,
the OUP work is said to have
additional methods such as a “
study section
” and a
“
reference section
”, and includes aspects from
social media communications such as examples of letters, emails, SMS
abbreviations and emoticons
(“
smileys
”). Language
, too, is evidently more contemporary in the OUP work, its publishers
apparently having identified (through market
research) the need for
language associated with a more progressive society.
[95] Finally, Ms Hall says
that OUP embarked on very active and intense sales and marketing
campaigns to promote its new products,
which were well received by
the school sector and language communities. She indulges ultimately
in an exercise in self-promotion
by OUP in referring to the various
prestigious awards and commendations which the Oxford Skoolwoordeboek
has received since 2008.
[96] Applying the test in
Galago
it is evident that OUP devoted a significant amount of
time, effort, expense and expertise in the compilation and
publication of
its new work, which took a number of years to compete.
That approach, in and of itself, flies in the face of an allegation
of unbridled
plagiarism. It becomes all the more obvious, however,
that wholesale copying has not occurred when one reads through
the
two works and considers the various example sentences which have
been highlighted by Dr Anton Prinsloo under B , D , I and
S :
the number of directly copied example sentences is limited and the
“Prinsloo-similarities” do not appear to be
extensive
either.
[97] What is more striking
when undertaking such an exercise, however, is the difference between
the two works. Not only in respect
of headwords which do not coincide
(and where there obviously cannot be plagiarised example sentences),
but also in regard to the
vast number of headwords where the example
sentences in the OUP bear no resemblance whatsoever to the Pharos
work. Indeed, those
differences would certainly seem to give the OUP
work a uniqueness when placed alongside the Pharos dictionary.
[98]
Mr.Sholto-Douglas SC
drew the court’s attention to certain concluding remarks in Dr
Rundell’s affidavit. Having expressed himself fairly
strongly
against any plagiarism in respect of any headword lists
[27]
, Dr Rundell goes on to deal with the complaints in regard to OUP’s
example sentences:
“
25.
With
regard to example sentences, I have explained why dictionaries of
this size will tend to pick the same contexts and exemplify
the same
word combinations. Annexure “MR5” shows many cases where
other pedagogical dictionaries have made exactly
the same choices. It
is fair to concede that there are a few cases where the similarities
cannot be entirely explained by the constraints
on compilers to
select the most frequent and typical scenarios: in the examples for
“business”, “deal”,
“direct”,
“shelter” and “similar” one might have
expected a little more contextual variation
. These, however, are a
small minority (no more than ten examples out of the 142 examples in
annexure”NB8” I have seen),
and I cannot agree with the
Applicant’s conclusion in paragraph 57 of the founding
affidavit that the similarities are “clearly
too many and too
noticeable to be coincidental”.
[99] Counsel for Pharos
seized upon this apparent concession by Dr Rundell and suggested that
copying by OUP was self-evident on
the strength of their own expert’s
opinion. I am not persuaded that there is merit in this argument.
Assuming that these
ten similarities out of 142 (of the order of 7%)
are not the product of both sets of compilers having obtained
information from
an independent source (something which cannot be
excluded as such), I remain of the view that Media 24 has not
discharged the onus
of demonstrating that the copying is sufficiently
qualitative to meet the test in
Ladbroke
upon which
Galago
is based. Simply put, it has not demonstrated a preference on the
part of learners and/or teachers for the OUP work as a consequence
of
its alleged copying of some of Pharos’ example sentences.
[100] The works in
question here are compilation works of reference for general use in
an endeavour to augment an existing reservoir
of general knowledge
for learners. Furthermore, and in any event, the dissimilarities in
the competing works (from layout to typeface
and example sentences)
are so extensive that I have come to the view that any true copying
by OUP of Pharos example sentences must
be regarded as lacking in
sufficient similarity to warrant interdictory relief.
[101] I am accordingly
not persuaded that Media 24 has discharged the onus of establishing
the requisite right, or the breach thereof,
sufficient to entitle it
to final relief at this stage. To do so, it must meet the test
postulated by Harms DP in
Zuma
, demonstrate that there are no
real factual issues and that the matter turns on a question of law
only. In my view the denials
put by OUP’s management and
confirmed under oath by the relevant compilersof the dictionary in
question cannot be described
as bald, unbelievable, patently fanciful
or lacking in credibility. The denials are also supported, at least
at a
prima facie
level, by an array of expert testimony.
[102] Moreover, to
the limited extent that I am entitled to exercise a discretion to
refuse final relief, it is material to note
that there is no
complaint in the papers by Media 24 that it will have difficulty in
establishing its case when it seeks damages
from OUP. On the
contrary, it seems to be fairly confident of success in the regard.
As against that, the OUP work has been in
the public domain for more
than 4 years now and to terminate the right to publish now when its
denials are likely be fully ventilated
at trial, will be highly
detrimental to OUP. I would therefore be inclined to exercise that
discretion in favour of OUP.
Conclusion
[103] It follows in
my view that the application must be dismissed with costs, such costs
to include the costs of two counsel.
GAMBLE J.
[1]
Apleni v Minister of Law and Order and Others
1989(1) SA 195 (A) at 201 A-D
[2]
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984(3) SA 623 (A); National Director of Public
Prosecutions v Zuma 2009(2)
SA 277 (SCA).
[3]
LAWSA (2
nd
ed.) Vol 11 at 415 para 398
[4]
Fourie v Uys 1952(2) SA 125 (C) at 128; Candid
Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd
1992
(2) SA 459
(C); Nampesca (Pty) Ltd v Zaderes
1999 (1) SA 886
(C) at
901.
[5]
Setlogelo v Setlogelo
1914 AD 221
at 227.
[6]
“
2.
Works
Eligible for Copyright
(1)
Subject
to the provisions of this Act, the following works, if they are
original, shall be eligible for copyright-
(a)
Literary
works;
1.
Definitions
In this Act, unless the context otherwise indicates-
…”
literary
work”
includes, irrespective of
literary quality and in whatever mode or form expressed –
(a) …
(b) ….
(c) …
(d) Encyclopaedias and dictionaries;”
[7]
“
21.
Ownership of Copyright
(1)
(a)
Subject to the provisions of this section, the ownership of any
copyright conferred by section 3 or 4 on any work shall vest
in the
author or, in the case of a work of joint authorship, in the
co-authors of the work.
(b)
(c) …
(d) …Where in case not falling within
either paragraph (b) or (c) a work is mathe course of the author’s
employment
by another person under a contract of service or
apprenticeship, that other person shall be the owner of any
copyright subsisting
in the work by virtue of section 3 or 4.
[8]
Infringement
(1) Copyright shall be infringed by any person, not being the
owner of the copyright, who, without the license of such owner, does
or causes any other person to do, in the Republic any act which the
owner has the exclusive rights to do or to authorize.
[9]
Galago Publishers (Pty) Ltd and Another v Erasmus
1989 (1) SA 276
(A)
[10]
Ladbroke (Football) Ltd v William Hill (Football)
Ltd
[1964] 1 ALL ER 465
(HL)
[11]
Dean
, Handbook
of South African Copyright Law 1-42 B.
[12]
The Wikipedia On-line Encyclopaedia
defines
“
practical
lexicography
” as “
the
art or craft of compiling, writing and editing dictionaries”
[13]
In Afrikaans “’
n lemma”
[14]
“
Voorbeeldsinne “
[15]
“
Betekenisonderskeiding”
[16]
Pricewaterhousecoopers Inc. and 4 others v
National Potato Co-Operative Ltd and Another
[2015] ZASCA 2
[4 March
2015]
[17]
Gentiruco AG v Firestone SA Pty Ltd
1972 (1) SA
589
(AD)
[18]
Coopers (South Africa) Pty Ltd v Deutsche
Gesellschaft fur Schadlingsbekampfung MBH
1976 (3) SA 352
(A)
[19]
Copinger and Skone James on Copyright (16
th
ed, 2011) at 441.
[20]
The paper was published as part of
the
Euralex
1992 Proceedings at p
561-70. EURALEX is the acronym for the European Association for
Lexicography which holds its conferences
every 2
nd
year throughout the Continent (see
www.eurolex
.org)
[21]
Jacana Education (Pty) Ltd v Frandsen Publishers
(Pty) Ltd
1988 (2) SA 965
(sca) AT 972 H-973 E
[22]
440, 7-30
[23]
441
et seq
[24]
p457
et seq
[25]
See para (j) referred to in the extract from
Copinger in para 79 above.
[26]
The word being employed in its most flexible form
as with the “
juice”
and “
milk
”
examples
[27]
“
On the basis of what I
have
looked at, however, I conclude that any claims of plagiarism based
on similarities and or overlap in the two headword lists is
without
foundation. If anything, the degree of variation across these lists
is greater than I would have expected in dictionaries
with such
similar goals
.”