characters, narrative and so on."
The contentions on behalf of Media24 do not involve slavish copying or clumsy adaptive plagiarism. It
contended that the copying was more subtle, involving the selection of the subject matter of example
sentences and the formulation and arrangement of those sentences. It submitted that the extent of the
correspondences was such that it could only have occurred in consequence of repeated reference to their
own work.
[15] The reference by Corbett JA to the need for a causal connection between the original work and the alleged
infringing work requires a brief explanation. What the Act prohibits, in the interests of the copyright holder, is
the reproduction of a substantial part of the original work. Where it occurs this will usually be deliberate, but
that is not a necessary requirement for infringement. The point was made in Francis Day & Hunter Ltd and
another v Bron,20 referred to by Corbett JA in the passage cited from Galago Publishers. In Bron it was alleged
that Mr Bron had used a wellknown tune as the basis for his own composition. He gave evidence that he had
never encountered the tune or had cause to play it and this evidence was accepted. But the argument was
that as a musician he would, in the ordinary course of events, have encountered the tune and when he came
to compose his own retrieved it from his subconscious and incorporated it in his tune. While it was not
established that this had occurred, the possibility of unconscious copying was accepted. Thus, Upjohn LJ
said:21
"There may be cases where, if the circumstances do not justify the conclusion that the defendant, in denying
conscious plagiarism, is not telling the truth,
Page 319 of [2016] 4 All SA 311 (SCA)
they yet justify the conclusion that he must have heard the plaintiff's tune, and subconsciously reproduced it."
[16] Any claim that depends to a substantial measure on the notion of unconscious copying must be approached
with circumspection. Isolated fragments of memory will not ordinarily suffice because it is only copying of a
substantial part of the work that constitutes infringement. As Diplock LJ said in the same case:22
"I think that the law is perfectly clear, and that such difficulties as there are in this appeal are solely due to the
absence of any factual information about the mental process involved in 'subconscious copying'. We know not whether
it is rare or common, general or idiosyncratic, nor indeed whether it is possible to remember, not a mere isolated
phrase, but a 'substantial part of' the remembered work without remembering that one is remembering."
[17] In the present case, involving the compilation of a dictionary, there can, I think, be no question of unconscious
copying. The extent of the alleged copying is necessarily too great to be explicable on that basis. I can
understand and accept that, when formulating an example sentence, a compiler might unconsciously make
use of a word, phrase or idea that they had recently seen in a similar context after consulting another
dictionary. But when that is said to have happened several hundred times it is not explicable on the basis of
unconscious copying.23 Even lexicographers do not bury in their subconscious minds dozens, much less
hundreds, of sentences that they have read in other dictionaries, illustrating the meaning of particular words
only to pluck them unconsciously from the recesses of memory when they are tasked with explaining the
same word. As the authors of a leading textbook in this field note, with a work of any complexity it is unlikely
that a person who remembered enough of it to be able to recreate it would be unaware of what they were
doing.24 That is especially so in the present case where the copying would have had to occur in the middle of
otherwise original work by the compilers. Accordingly, for copying of a substantial part of the
Aanleerderswoordeboek to have occurred in the present case it must have been deliberate copying.
[18] Counsel correctly submitted that in the absence of direct evidence of copying which is usually hard to come
by establishing substantial similarity between the original and the alleged infringing work together with
proof of the possibility of access by the alleged infringer to the original work, suffices to raise a prima facie
case of copying.25 It is then for the alleged infringer to show how its work was produced without copying. A
Page 320 of [2016] 4 All SA 311 (SCA)
bare denial of having copied is unlikely to displace the inference arising from proof of similarity and access to
the original. An explanation of the process adopted in producing the alleged infringing copy that plausibly
explains the reasons for the similarity between them will usually be called for. But the onus is not thereby
shifted to the alleged infringer. It is always for the claimant to establish copying on the ordinary standard of
proof, namely, a balance of probabilities.
OUP's case
[19] Media24's case in its founding affidavit was expressed in broad and general terms. Insofar as the example
sentences were concerned the founding affidavit mentioned no specific examples and merely referred to Dr
Prinsloo's report and the schedules derived by him from his comparative analysis of the letters B, D, I and S in
the two dictionaries. These schedules set out all the correspondences he identified in the Afrikaans and
English sections of the dictionaries in respect of those letters. They were attached to the founding affidavit as
annexures NB 7 (Afrikaans), containing 215 instances, and NB 8 (English), containing 142 instances,
respectively. That involved fewer than 300 words, because in many instances the alleged correspondences
related to various meanings of the same word. The Afrikaans list referred to 169 out of 712 words common to
both dictionaries and the English list to 127 out of 616 common words. The Oxford Woordeboek contained 1301
headwords in Afrikaans and 1158 in English in respect of these letters.
[20] The figures in the previous paragraph are taken from the report of Professor Dunne, of whom more anon.
Assuming that these four letters were representative of the whole alphabet, so that they can be projected for
the entire dictionary, Media24's complaints were confined to example sentences for no more than ten or