"Learner's Dictionary for Schools/Die Aanleerders Woordeboek vir Skole" (herein after referred to as "the
Pharos work") pursuant to the provisions of section 2(1)(a) read with the
Page 483 of [2015] 3 All SA 478 (WCC)
definition of "literary work" in section 1 of the Act. Given that part (d) of that definition includes a "dictionary",
there is no issue that the Pharos dictionary is indeed a literary work.6
[17] Then, Media 24 must show that it is the owner of such copyright.7 Subject to the contention already
mentioned that the Pharos work lacks originality in certain respects, this issue is not in dispute either.
[18] Finally, Media 24 must establish, on a balance of probabilities, that OUP has unlawfully reproduced and/or
adapted the Pharos work (or a substantial portion thereof), in compiling its Oxford AfrikaansEngels/ English
Afrikaans School Dictionary. 8 For the sake of convenience, I shall refer to the latter publication as "the OUP
work". It is this aspect, (unlawful reproduction/adaptation) which really is at the core of the dispute between
the parties.
[19] There is also a procedural objection taken by OUP in which it claims that Media 24 cannot succeed by way of
notice of motion. It says that the nature of the enquiry and the assessment of the expert evidence put up by
the parties is of such a nature that the matter cannot be properly decided without careful and thorough
interrogation under crossexamination. Given that Media 24 was advised of this stance prior to the filing of
OUP's answering affidavit, and given further that it ignored the invitation to convert the application into action
proceedings, OUP says that the application falls to be dismissed without more.
Page 484 of [2015] 3 All SA 478 (WCC)
The approach in copyright infringement claims
[20] Counsel were in agreement that the judgment of Corbett JA in Galago Publishers9 is the leading authority on
copyright infringement in our law. At 280BD the learned Judge of Appeal observed that:
"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 that 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 its own?"
[21] At 285BE Corbett JA deals with the concept of "the reproduction of a substantial part" by referring to the
speech of Lord Reid in the House of Lords in Ladbroke10:
"As to what is meant by the reproduction of a substantial part of the plaintiff's work, I would simply refer to what was
stated in the Ladbroke case supra by Lord Reid (at 469):
'If he does copy, the question whether he has copied a substantial part depends much more on the quality than
on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking,
or is merely a commonplace arrangement of ordinary words or wellknown data. So it may sometimes be a
convenient shortcut to ask whether the part taken could by itself be the subject of copyright. But in my view,
that is only a shortcut, and the more correct approach is first to determine whether the plaintiff's work as a
whole is 'original' and protected by copyright, and then to enquire whether the part taken by the defendant is
substantial. A wrong result can easily be reached if one begins by dissecting the plaintiff's work and asking,
could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself,
and so on. To my mind, it does not follow that because the fragments taken separately would not be copyright,
therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have
been exercised in devising the arrangements of the whole work, that can be an important or decisive element
in deciding whether the work as a whole is protected by copyright."
[22] As far as the causal connection requirement referred to in the first passage is concerned, 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, be it conscious or subconscious.11
Page 485 of [2015] 3 All SA 478 (WCC)
The compilation of a dictionary
[23] Dictionaries are compiled by lexicographers12 who customarily work in teams. In the case of Media 24 it made
use of a number of inhouse personnel while OUP used freelance staff. In the answering affidavit Ms Megan
Hall, OUP's publishing manager for dictionaries, describes in considerable detail how the mammoth task of
compiling the Oxford school dictionary was undertaken. Firstly, Ms Hall visited OUP in England in November
2003 to research, study and discuss with various experts the compilation of both monolingual and bilingual
dictionaries. Then, in 2004, she set about identifying, testing, and briefing freelance personnel to fill a variety
of roles on the compilation team. Ms Hall says, too that in this preparatory phase a conscious decision was
made by OUP to publish a bilingual dictionary to compete with the Pharos work.
[24] During 2004 Professor Daan Prinsloo, an expert in corpusbased lexicography at the University of Pretoria was
briefed by OUP to provide the Afrikaans and English "headword" list. A headword13 is the word which