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 A s s u c h t h e Aanleerderswoordeboek w a s , o n
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
Page 317 of [2016] 4 All SA 311 (SCA)
[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 section 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 T h e
dictionary in issue in that case was an EnglishTamil 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
Page 318 of [2016] 4 All SA 311 (SCA)
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
(paragraph 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,