and the other two, numbers, and that the defendant, who had used the code for identifying and listing
gaskets in South Africa, had copied it and had infringed the plaintiff's copyright in it.43 English law follows a
similar approach.44
[81] Where the literary work consists of multiple entries however, such as the directory of telefax users which was
the subject of the proceedings in the Fax Directories case, the question would be whether the owner of the
copyright had proved the necessary element of "substantial copying". In that case, the directory consisted of
11 000 entries of which the applicant had shown only 28 or 29 instances of copying. This the applicant did by
putting into evidence only the fictitious entries deliberately placed by the applicant into the directory so as to
check more easily whether copying had indeed occurred or to put it simply, to trap prospective copiers. The
respondent therein argued that this limited number of instances of copying shown refuted suggestions of
wholesale copying. The court quoted with approval the following passage from Ladbroke (Football) Ltd v William
Hill (Football) Ltd 45 which passage has been referred to and quoted with approval by Corbett JA (as he was
then) in Galago Publishers (Pty) Ltd and another v Erasmus46 and by Harms JA (as he was then) in Biotech
Laboratories (Pty) Ltd v Beecham Group Plc and another:47
"If he does copy the question whether he has copied a substantial part depends more on the quality rather than the
quantity of what has been taken. One test may be whether the part which he has taken is novel or striking, or is
merely a commonplace arrangement or 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 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 even
decisive element in deciding whether the work as a whole is protected by copyright."
Page 485 of [2014] 2 All SA 461 (GJ)
[82] Just like in the Fax Directories case (supra) at 178EF, the court in the above case concluded as follows at
178FI:
"On the facts of the present case the inference is inescapable that the 28 or so instances mentioned above were
copied directly or indirectly from the applicant's works, most of them probably from the first edition but at least one
from a subsequent edition. It is inconceivable that the respondent could only have selected these 28 or 29 cases to
copy. The probabilities are overwhelming that there must have been many more entries that were simply copied.
Mr Levinsohn was quite right when he argued that it is impossible to determine what the extent of the copying was. I
do not think, however, that it is necessary for the applicant to show the exact extent of the copying, provided that he
does show that the copying was not insubstantial.
Having regard to the nature of the work in question, a directory, which must by its nature aim to be as complete as
possible, a deletion of 28 entries therefrom would in itself render the work substantially less valuable. (The fact that in
casu the 28 entries are in any event fictitious or erroneous is not the point. I am attempting to demonstrate that 28
entries alone can be a substantial part of the whole.) And if one considers that this is only the tip of the iceberg, as it
were, then the inference is wellnigh inescapable that what was copied was substantial even if the precise extent
thereof is not known."
[83] The English Courts also had the opportunity of deciding issues similar to the one we are dealing with in a case
of Football League Ltd v Littlewoods Pools Ltd48 where the Chancery Division had occasion to consider whether
the reproduction by Littlewoods Pools (for purposes of betting on the results of matches) of the Football
League's soccer fixtures was actionable as an infringement of copyright.
[84] After considering how the author went about preparing the list of soccer fixtures, the Chancery Division found
that these (the fixtures) were subject to copyright. It proclaimed so in the following words:49
"Every case must depend on its own facts. It is perfectly true that Sutcliffe was not employed to produce a work of art
per se nor even a work primarily as a book of reference, such as a directory or a railway guide, but he was employed
to produce the best possible programme of fixtures. Of necessity however, that programme had to be reduced to
writing. The League's duty is to arrange the best possible programme of games to please the football public in general
and the clubs' finances in particular, and they can only do so by producing a list or lists of those games. If, as a result
of prolonged cogitations, Sutcliffe reaches a conclusion that it will be best if, for example, Arsenal plays Manchester
City at Highbury on September 20, 1958 (as the programme provided), he is doing so no doubt primarily because
that is best from the point of view of league football, but if, as a result of the whole of his prolonged and skilled
cogitations, he produces in a particular form the season's list containing 2028 matches or thereabouts, in my
judgment he or the League (who have, by direct assignment, any copyright which might otherwise vest in him) are
entitled to claim that the chronological list is produced as a result of the entire skill, labour, time, judgment and
ingenuity of the League, their servants and agents. In my judgment, on the facts of this case, it is not open to the
defendants to try and dissect and break down the efforts of Sutcliffe in the way
Page 486 of [2014] 2 All SA 461 (GJ)
suggested. Accordingly in my judgment, the plaintiffs are entitled to copyright in the chronological list."
[85] As to whether or not an infringement had occurred, the learned Judge, Upjohn J, went to find as follows at
pages 657658 of the same judgment:
"The undisputed facts fundamental to my decision in this case are that the chronological list itself is taken by the
defendants and used by them line by line and division by division in exactly the same order as the plaintiffs for the
preparation of each of their coupons week by week throughout the season (except for a few, cuptie weeks, which