together with a few league match changes, as I have already pointed out, may be regarded as de minimis) and they
do this deliberately and under a claim of right to do so . . . What in fact the defendants have done each week is in
substance to copy exactly the League list for that week throughout the season.
I find some assistance on this point from the Cate v Devon & Exetor Constitutional Newspaper Co (1889) 40 ChD 500;
5 T.L.R. 229. In that case the plaintiff published weekly a list of bankruptcies, bills of sale, and so on, the names being
listed by counties. The defendants took week by week such names for the county of Devon. The relevant entries
pirated formed naturally a very small part of the whole. That case, while not on all fours with the present, has,
however, a strong family resemblance. North J said:
'Then there is a further point raised by the defendants that the amount that has been taken from the copyright
publication is very small. In one paper I think out of the three weeks papers which have been put up in evidence
there was only one entry taken; in another there were, I think, four; in the third only a small number; but in
considering these it must be borne in mind that all that is material for the defendants for the purpose of their
newspaper has been taken, and that it is taken entirely copied exactly, from the paper taken regularly,
systematically, every week, and published for the purpose of giving information to the very persons to whom the
plaintiffs intend their publications to give that information; and, what is more important still, the defendants now claim
to do it as of right; and that of itself is quite sufficient to put them in the wrong in the action and get over any question
as to the amount of the matter actually taken from the particular publication which is in evidence. It seems to me,
therefore, that the defendants have been wrong throughout: they had no right to take this matter in which the
plaintiffs have copyright, and the action is well founded.'
Upon the whole, I have come to the conclusion that this systematic pirating by the defendants work week by week
throughout the season of that part of the League's list which is relevant to that week deliberately and (by their
defence of this action) under a claim of right amounts in the end to a reproduction of the plaintiff's compilations and
infringes accordingly."
[86] It should be mentioned that the above expositions of English law on copyright infringement is as the law was
before the situation was changed through Directive 96/9 of the European Parliament which was implemented
into English law by the adoption of the Copyright and Rights in Databases Regulations 199750 which came
into force in England on 1 January 1998. The effect of that Directive is to alter the law as it was in
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terms of the judgment of Upjohn J in the Little Pools case to the effect that soccer fixture lists are no longer
protected, in consequence of the Directive.51
[87] It is my finding that because South Africa cannot be or is not affected by the above Directive, the law as laid
down by Upjohn J is still good law, based as it is on the English Copyright Act from where our law is derived,
without influence from the European Parliament's Directive. Consequently the defendant's argument that
international developments should be looked into as they may be a helpful guide to this Court in exercising its
value judgment here cannot stand.
[88] The plaintiff's witnesses, Mr Blanckensee and Prof Schloss were the only witnesses on the issue of
infringement. Both were able to show that the defendant copied annual lists and corresponding weekly lists.
Mr Blanckensee testified to the infringement in the above manner for the 20122013 and 20132014 lists or
fixtures. Prof Schloss' testimony proved the infringements in respect of the 20082009, 20092010 and 2010
2011 seasons. In all the above respects, the defendant used the copied fixtures or lists in their Sport Stake
games.
[89] The defendant attempted to prove alleged implied nonexclusive licence to make use of the plaintiff's lists. It
tendered evidence purporting to contain a schedule of the plaintiff's fixtures selected by it (defendant)
between the period 30 August 2008 and 28 November 2010, all in all amounting to 293 fixtures copied and/or
used. This was out of a total of 517 weekly fixtures or lists for the period 30 August 2008 to 10 November
2010 and annual lists from 13 November 2010 to 28 November 2010. Percentage wise, it boils down to the
defendant having used 56,67% of the plaintiff's fixture lists or contents thereof during the period mentioned
above.
[90] The plaintiff also managed to prove that the defendant was continuing to copy and use its lists and/or fixtures
to date. They thus managed, in my view, to prove that from a qualitative point of view, there is little doubt
that the fixtures taken by the defendant for purposes of its "Sport Stake" are substantially significant52 to
the whole list. It is clear or common cause that the integrity of the list would be compromised by the exclusion
of the fixtures copied by the defendant, ie the list would be incomplete to such a degree that its very reliability
as a fixture would be at stake were the copied fixtures excluded from it.
[91] In addition to the plaintiff having shown that the defendant infringed its copyright, it is my further view and
finding that this infringement is occurring up to this moment on an ongoing basis.
[92] It is our law that it is not incumbent on a plaintiff to establish each and every infringement. In casu, the
probabilities are in my view clearcut in favour of the conclusion that the examples shown establish an
existing
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trend that points towards the socalled "tipoftheiceberg" as found by our courts if the Fax Directories
judgment53 is anything to go by.
[93] The testimony of Mr Sibusiso Simelane who was called by the defendant to substantiate its defence of alleged
nonexclusive implied licence in my view and finding confirmed that the "Sport Stake" list was published twice
a week.