Media24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd
[2016] 4 All SA 311 (SCA)
Division:
SUPREME COURT OF APPEAL
Date:
16 September 2016
Case No:
886/2015
Before:
MS NAVSA, XM PETSE, LV THERON, MJD WALLIS and NP WILLIS JJA
Sourced by:
Z Kanku
Summarised by:
DPC Harris
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property Copyright Dictionaries published by rival companies Allegation of copying Similarity raising
suspicion of copying Onus of proving copying not discharged on the basis of similarity alone.
Editor's Summary
At the centre of the present dispute were two bilingual dictionaries translating between English and Afrikaans. The
first such dictionary to be published by either of the parties was published by a predecessor of the appellant
("Media24") in 1993. It was republished in 2006 under a new name, referred to by the court as the
"Aanleerderswoordeboek". The respondent ("OUP") published its work (the Oxford Woordeboek) in 2007. The two
dictionaries were competitors in the market place.
In October 2011, when Media24 commenced preparations for a new bilingual AfrikaansEnglish dictionary to
replace the Aanleerderswoordeboek, its employees concluded that the Oxford Woordeboek, to a substantial extent,
had been copied from the Aanleerderswoordeboek.
Seeking interdictory and other relief, Media24 launched proceedings in the High Court, claiming that OUP was
guilty of a breach of its copyright in the Aanleerderswoordeboek. Media24's allegations of copying by OUP related to
three aspects initially. However, in argument before the court, the focus was on the extent of the alleged copying of
the example sentences used in the dictionary entries.
Held A d i c t i o n a r y i s a l i t e r a r y w o r k f o r t h e p u r p o s e s o f t h e C o p y r i g h t A c t 9 8 o f 1 9 7 8. A s s u c h t h e
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. 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.
Overt copying of material is easier to make a copyright finding on. That was not the case in this matter. The Court
also pointed out that it is not a requirement that the copying be deliberate. However, 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. The Court held that for copying of a substantial part of the Aanleerderswoordeboek to have
occurred in the present case it must have been deliberate copying. However, it was faced with the adamant
testimony from OUP's dictionary compliers, that they had not copied the Aanleerderswoordeboek.
Page 312 of [2016] 4 All SA 311 (SCA)
The Court noted the skill and experience possessed by each of OUP's compliers. OUP also delivered affidavits by
three expert witnesses who explained how similarities which occurred between the two dictionaries could
legitimately have come about. Although invited to explain in what manner the alleged copying had occurred,
Media24 provided no clear answer to that question. It also argued its case without oral evidence, but was unable
to discharge the onus of proving copying on the papers.
Finding that Media24's claim had correctly been dismissed, the Court dismissed the appeal.
Notes
For Copyright see:
LAWSA Second Edition Replacement Volume (Vol 5(2), paras 198)
·
Cases referred to in judgment
South Africa
Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA
67 ([2002] ZASCA 97; 2003 (1) SA 31) (SCA) Referred to
326
Fax Directories (Pty) Ltd v SA Fax Listings CC [1990] 1 All SA 107
(1990 (2) SA 164) (D) Referred to
316
Galago Publishers (Pty) Ltd and another v Erasmus [1989] 1 All SA 431
([1988] ZASCA 131; 1989 (1) SA 276) (A) Referred to
317