Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd
[2015] 3 All SA 478 (WCC)
Division:
WESTERN CAPE DIVISION, CAPE TOWN
Date:
21 April 2015
Case No:
23368/12
Before:
PAL GAMBLE J
Sourced by:
Adv C Webster and G Kay
Summarised by:
DPC Harris
. Editor's Summary . Cases Referred to . Judgment .
[1] Civil procedure Final interdict Requirements Applicant had to establish a clear right 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 the
respondent Applicant had to prove on a balance of probabilities an "injury" committed by respondent ie an infringement
of its copyright with resultant prejudice Applicant had to establish that it had no adequate or alternative remedy
available to it.
[2] Intellectual property law Copyright Compilation of dictionaries Copyright Act 98 of 1978 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
Court concluded that the dissimilarities in the competing works (from layout to typeface and example sentences) were so
extensive that any true copying was regarded as lacking in sufficient similarity to warrant interdictory relief.
Editor's Summary
The respondent was a South African publisher of a variety of literary works including dictionaries, in this case for use
by school learners. The applicant also published dictionaries for the local market through one of its trading arms.
Alleging that the respondent had copied certain of its earlier titles, thereby breaching its rights of copyright under
the Copyright Act 98 of 1978, the applicant applied for interdictory relief restraining the respondent from infringing
its copyright.
The claim for final relief was challenged by the respondent on two levels. Firstly, there was a general denial that it
had directly copied the applicant's work. Secondly, it said that the applicant had failed to establish the originality of
its entire work, on the basis that, like the respondent, it had 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 were common practice and/or common explanations over which the applicant
could not claim exclusivity.
Held In seeking a final interdict, the applicant had to establish a clear right 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 the
respondent. It also had to prove on a balance of probabilities what is customarily referred to as an "injury"
committed by respondent. That was to be understood as an infringement of its copyright with resultant prejudice.
Furthermore, the applicant had to establish that it had no adequate or alternative remedy available to it.
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
Page 479 of [2015] 3 All SA 478 (WCC)
the objective similarity between two works can lead to a strong inference that there has been copying. Regard was
had in this case to the manner in which dictionaries are complied.
Given the technical nature of the issues involved, the Court deemed it not appropriate to decide the case on the
strength of the expert reports on affidavit. The matter had to be determined in accordance with the PlasconEvans
rule with due regard for the onus which the applicant had attracted by moving for final interdictory relief.
Finding that the respondent had 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, the Court found that to fly in
the face of an allegation of unbridled plagiarism.
The applicant was unsuccessful in establishing a clear right to the relief sought, and the interdict was refused.
Notes
For Civil Procedure: Superior Courts see:
LAWSA Third Edition (Vol 4, paras 1511)
·
Harms, DR Civil Procedure in the Superior Courts Durban LexisNexis 2012
·
For Intellectual Property and Trademarks see:
LAWSA Second Edition Replacement Volume (Vol 29, paras 1308)
·
Burrell TD Burrells South African Patent and Design Law (3ed) Durban LexisNexis 1999
·