evaluating the question of similarity. 21 In Copinger et al22 the authors, in remarking that the question
involves the application of not all together precise legal standards to a combination of features of varying
importance, postulate the approach thus:
"The issue of substantial part is a mixture of law and fact in the sense that it requires the court to apply a legal
standard to the facts as found. It is a matter of degree in each case and has to be considered having regard to all the
circumstances. In the end it is often a matter of impression, in the sense that it generally involves taking into account
a number of factors of varying degrees of importance and deciding whether they are sufficient to bring the whole
within the legal description of 'substantial part', as to which it may be difficult to give precise reasons for arriving at a
conclusion one way or the other. There are always borderline cases over which reasonable minds may differ."
[79] Having observed then that the "substantial part" test varies from case to case and will largely depend on the
type of work involved, they authors list a dozen or so general propositions to be considered.23 In my view,
relevant to this matter are the following:
"(a)
. . .
(b)
The quality or importance of what has been taken is much more important than the quantity. The issue thus
depends not just on the physical amount taken but on its substantial significance or importance to the copyright
work, so that the quality, or importance, of the part is frequently more significant than the proportion which the
borrowed part bears to the whole. In this context, expressions such as 'quality' or 'importance' need to be
properly understood. . . . Quality and importance must therefore be understood in terms of the features of the
work, which made it an original work in the first place. It follows that the quality relevant for the purposes of
substantiality in the case of a literary work refers to the originality of that which has been copied. In the case of
an artistic work, it is the originality of the artistic expression of that which has been copied . . .
(c)
Depending on the circumstances, the question may depend on whether what has been taken is novel or striking
or is merely a commonplace arrangement of words or wellknown material. In this respect, it may be a helpful
shortcut to ask whether the part taken could itself be the subject of copyright, although this should not be used
as a substitute for the proper and full test of substantial part . . .
(f)
In general it is wrong to dissect the claimant's work, taking each part which has been copied and asking
whether each part could be the subject of copyright if it had stood alone: '. . . it is wrong to take the parts of
the original copyright work that have been copied in the alleged infringing work, to isolate them from the whole
original copyright work and then to conclude that a substantial part of the original copyright
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work has not been copied because there was no copyright in the copied parts on their own.' It is the work as a
whole which must be considered particularly where the originality of the work lies in the creation of the work as
a whole. If there is no originality in the creation of the work as a whole, for example, where the work is simply
a collection of subsidiary works assembled without any sufficient skill or labour, the proper analysis is that
there is not one work but rather a number of works. In such a case, it would be proper to take each subsidiary
work by itself. But this is not a question of substantial part but of identifying the real copyright work or works in
issue. A claimant cannot divide 'the work' into small sections, so as to improve his case by arguing that a
substantial part of a small section has been taken.
(j)
If what has been taken from the claimant's work is material which was not original to the maker of the work,
because for example it was copied from another work, then it should be disregarded in deciding this issue. If,
however, part of the originality of the claimant's work consisted of the choosing and collecting of unoriginal
material, and the defendant has made unfair use of this labour and skill, then the test would be satisfied. This
can often be seen in compilation cases but other types of works will also often contain elements taken from
earlier works but combined in a new way.
(k)
Although statements to precisely the opposite effect can be found, the relevant question is not whether the part
which has been taken forms a substantial part of the defendant's work but whether a substantial part of the
claimant's work has been taken. Indeed, whether the part taken forms either a small or a substantial part of
the defendant's work is irrelevant . . .
(l)
In the case of some works such as works of reference, it may be that a greater amount of copying is
permissible than with other works such as novels. This is on the basis that one of the purposes of the author
was to add to the stock of human knowledge, so that there may be attributed to him an intention that the
material in his work, if it is not to become sterile, may be used by the reader that with the consequence that
the law will allow wider use of such a work."
[80] It is not insignificant, I believe, that when Copinger et al deal with the categories of literary works comprising
that are termed "compilations,"24 the authorities relied on in respect of dictionaries, encyclopaedias, etc refer
to 19th century English cases dealing with educational books. The earlier comment regarding the absence of
any cases of copyright involving dictionaries per se therefore appears to be correct.
[81] One might ask whether this is because publishing houses are reluctant to litigate, or whether there is some
other plausible explanation. Given that the general practice is that in compiling new work lexicographers, as a
matter of course, consult a variety of other reference works, including competing dictionaries, it may be that
the role players do not regard the consideration and use of the sample sentences of others to be offensive.
This in turn maybe because the creator of the alleged original work (as with Pharos here) has, similarly made
use of earlier reference works and dictionaries25 i n a n e n d e a v o u r t o e n h a n c e t h e " s t o c k o f h u m a n
knowledge".
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Reviewing the competing works