lexicographers and the statisticians as to the underlying assumptions made (eg copy or intentional
distinction?) when drawing up the list of perceived similarities (in this case the socalled "Kidd similarities").
This all the more so because, when paging through the B D I and S headwords of the OUP work, one is struck
by the fact that the highlighted phrases designated by Dr Anton Prinsloo as the alleged plagiarisms do not
appear to be anything like one in every five example sentences, as the 20% figure presented by Prof Kidd
suggests.
[91] But assuming that I am wrong in this regard and that there is in fact a fair degree of copying26 by OUP, the
question that follows is how does such copying contribute qualitatively to OUP'S work, as we see in cases
such as Galago and Ladbroke? On this important aspect of the case, Media 24 is surprisingly silent. Despite the
plethora of opinions expressed on both sides, no one has come forward and explained to the court just how
the
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alleged copying has advanced the OUP publication as a literary work at the expense of the Pharos work.
[92] In the founding papers Dr Smith makes certain bald allegations at the end of her affidavit, stating that since
the publication of the OUP work in 2007 sales of the Pharos work have dropped drastically, and that Media 24
has continued to lose market share with regard to its Pharos dictionaries.
[93] Ms Hall deals thoroughly with these allegations in the answering affidavit, devoting some 20 paragraphs over
10 pages thereto. I do not intend to recite the full extent of her allegations herein. Suffice it to say, Ms Hall
claims that the OUP work is a far more modern and uptodate work than the Pharos dictionary. She claims
that in respect of content the OUP work includes "a wide range of vocabulary important to school subjects as
expressed in the official curriculum documents or . . . textbooks . . . " She points out also that the OUP
dictionary has a completely different "structure of entries" to the Pharos work and that on this score the OUP
work is more accessible to students and teachers since it follows the more traditional "entry structure" with
which readers are familiar.
[94] As far as design and layout are concerned, says Ms Hall, the OUP work is more modern and appealing through
its use, for example, of different fonts for the headword and the body of the entry, markers offering clear
distinction, the placing of page numbers and the use of "guide words" at the top of every page (on the
outside edge thereof, as opposed to the Pharos work which has the commencing and terminating "guide
words" at the left and right top edges of each page.) Once again annexures A and B hereto demonstrate the
distinctions. Also, the OUP work is said to have additional methods such as a "study section" and a "reference
section", and includes aspects from social media communications such as examples of letters, emails, SMS
abbreviations and emoticons ("smileys"). Language, too, is evidently more contemporary in the OUP work, its
publishers apparently having identified (through market research) the need for language associated with a
more progressive society.
[95] Finally, Ms Hall says that OUP embarked on very active and intense sales and marketing campaigns to
promote its new products, which were well received by the school sector and language communities. She
indulges ultimately in an exercise in selfpromotion by OUP in referring to the various prestigious awards and
commendations which the Oxford Skoolwoordeboek has received since 2008.
[96] Applying the test in Galago it is evident that OUP 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. That
approach, in and of itself, flies in the face of an allegation of unbridled plagiarism. It becomes all the more
obvious, however, that wholesale copying has not occurred when one reads through the two works and
considers the various example sentences which have been highlighted by Dr Anton Prinsloo under B, D, I and
S: the number of directly copied example sentences is limited and the "Prinsloosimilarities" do not appear to
be extensive either.
[97] What is more striking when undertaking such an exercise, however, is the difference between the two works.
Not only in respect of headwords
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which do not coincide (and where there obviously cannot be plagiarised example sentences), but also in
regard to the vast number of headwords where the example sentences in the OUP bear no resemblance
whatsoever to the Pharos work. Indeed, those differences would certainly seem to give the OUP work a
uniqueness when placed alongside the Pharos dictionary.
[98] Mr SholtoDouglas SC drew the court's attention to certain concluding remarks in Dr Rundell's affidavit. Having
expressed himself fairly strongly against any plagiarism in respect of any headword lists,27 Dr Rundell goes
on to deal with the complaints in regard to OUP's example sentences:
"25.
With regard to example sentences, I have explained why dictionaries of this size will tend to pick the same
contexts and exemplify the same word combinations. Annexure 'MR5' shows many cases where other
pedagogical dictionaries have made exactly the same choices. It is fair to concede that there are a few cases
where the similarities cannot be entirely explained by the constraints on compilers to select the most frequent
and typical scenarios: in the examples for 'business', 'deal', 'direct', 'shelter' and 'similar' one might have
expected a little more contextual variation . These, however, are a small minority (no more than ten examples
out of the 142 examples in annexure 'NB8' I have seen), and I cannot agree with the Applicant's conclusion in
paragraph 57 of the founding affidavit that the similarities are 'clearly too many and too noticeable to be
coincidental'".
[99] Counsel for Pharos seized upon this apparent concession by Dr Rundell and suggested that copying by OUP