The case concerns two dictionaries intended to be used by and assist school children. They are bilingual Afrikaans-English English-Afrikaans dictionaries. 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 which appears first and identifies the part of speech (noun, verb, adjective etc.), or parts of speech, the second 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 thereafter it will be translated into English and vice versa.
Legal Question / Dispute
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). As such the Aanleerderswoordeboek was, on publication, a literary work eligible for copyright. The holder of copyright in a literary work is vested with the exclusive right to reproduce the work in any manner or form. A copyright is infringed when 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. Media 24 Books (Pty) Ltd (“the Appellant”) applied for a final interdict against Oxford University Press SA (Pty) Ltd (“the Respondent”), requesting an order prohibiting further infringements of its rights under the Copyright Act 98 of 1976. The Appellant alleged that the Respondent had plagiarised a number of their example sentences from their Afrikaans/English school dictionary.
The basis of the claim was said to have arisen when the Appellant was planning a new bilingual dictionary for schools. It claimed that in perusing the Respondent’s dictionary, it found that the headwords, the sense order of words and sentences used to illustrate the meaning of words were so similar that this could only be attributed to copying on the part of the Respondent. The latter for its part described in detail the manner in which its dictionary had been compiled and recanted copying. At the hearing in the High Court and in the SCA the focus fell squarely on the similarity between the illustrative sentences as they appeared on both the Afrikaans and the English sides of the 2 (two) dictionaries. The Responded filed affidavits by the three compilers of these sentences in which they all denied copying from the Appellant’s dictionary.
Two of the compilers denied even having a copy of the Appellant’s work, while the other said that she occasionally used it along with many other dictionaries in the ordinary course and scope of her work, but did not copy from it. The editor of the compilers’ work equally delivered an affidavit in which he denied making use of the Appellant’s dictionary. In addition, the Respondent filed affidavits by two expert lexicographers who explained how it was likely that in compiling a dictionary of this type it was probable that there would be similarities between the illustrative sentences in each, given that the words being defined constituted a basic core vocabulary and had to be explained in terms appropriate for children. The Appellant argued its case without the benefit of oral evidence and confined itself to contending that the similarities were so great that they demanded the rejection of the evidence led on behalf of the Respondent.
The court held, after a consideration of the extent of original work in the Respondent’s publication and a number of factors that counted against copying having occurred, that the Appellant had failed to prove copying and accordingly its claim had been properly dismissed.
In support of the above, Judge Gamble found in favour of the Respondent due to the Appellant’s failure to show “sufficient objective similarity”, and actual harm suffered. Judge Gamble focussed on the “quality” of the work alleged to be plagiarised “and not quantity”. Judge Gamble noted in his judgment –