Copyright Infringement Involving Dictionaries

This case was a very uncommon legal case involving intellectual property law in South Africa since it was the first time that copyright infringement pertaining to dictionaries was determined.

Background

In 1933 Media 24 Books (Pty) Ltd produced and published its first Afrikaans – English bilingual dictionary entitled the “Tweetalige Aanleerderswoordeboek”. This dictionary was later updated and reproduced in 2006, thereafter it became known as the “Pharos Aanleerderswoordeboek”. A year later, in 2007, Oxford University Press Southern Africa) Pty) Ltd released its own bilingual dictionary entitled the “English – Afrikaans Skool Woordeboek”.

It was only some time later in 2011 when Media 24 Books (Pty) Ltd was intending on releasing a completely new bilingual dictionary that it discovered certain similarities between their own dictionary, the Pharos Aaleerderswoordeboek and the dictionary produced by Oxford University Press Southern Africa (Pty) Ltd. Whilst doing market research in order to compile their new dictionary Media 24 Books (Pty) Ltd consulted a variety of dictionaries and of course also consulted the Oxford University English – Afrikaans Skool Woordeboek. This is when Media 24 Books (Pty) Ltd realised that Oxford University Press had copied some of the example sentences from their dictionary.

Media 24 Books (Pty) Ltd alleged that Oxford University Press had copied the short sentences used to illustrate the meaning of words and that the example sentences were similar or loosely adapted from the Pharos Aanleerderswoordeboek. At the hearing of in the High Court Media 24 alleged that the similarity of the example sentences were too numerous and that they justified the conclusion that Oxford University Press had copied them. Oxford University Press vigorously denied having plagiarised Media 23 Book’s dictionary and maintained that their dictionary was a product of independent work.

Media 24 Book’s claim was dismissed and Media 24 Books (Pty) Ltd proceeded to bring and application for leave to appeal following the judgment granted by the Western Cape Division of the High Court.

At the hearing in the High Court and in the SCA the focus fell on the similarity between the illustrative sentences as they appeared on both the Afrikaans and the English sides of the two dictionaries.

In order to succeed with a prima facie case of copying Media 24 Books (Pty) Ltd had to show that that there was substantial similarity between the alleged infringing work and the original work and that the alleged infringer, Oxford University Press, had access to the original work, Then the alleged infringer is called upon to explain how the infringing work was produced and accordingly Oxford University Press had to explain how the Afrikaans – English Skoolwoordeboek was produced.

Oxford University Press filed affidavits by the three freelancers who prepared the entries for the dictionary in which they all denied copying from Media 24 Book’s dictionary. Two of the compilers denied even having a copy of that work, while the other said that she occasionally used it along with many other dictionaries in the ordinary course of her work, but did not copy from it.

In addition Oxford University Press filed affidavits by two expert lexicographers who explained how it was likely that in compiling a dictionary of this type it was probable that there would be similarities between the illustrative sentences in each, given that the words being defined constituted a basic core vocabulary and had to be explained in terms appropriate for children.

Judge Gamble found in favour of Oxford University Press and dismissed the application brought by Media 24 books, due to their failure to show “sufficient objective similarity”, and its actual harm suffered. Gamble focussed on the “quality” of the work alleged to have been plagiarised and not the quantity. The court agreed that where there is a common source, the mere of fact of similarity does not create an inference that there was copying.

It is noteworthy that Media 24 Books (Pty) Ltd elected to argue its case without the benefit of oral evidence where it would have had the opportunity to cross examine the witnesses of Oxford University Press in order to establish if they were telling the truth. Instead Media 34 Books (Pty) Ltd confined itself to the evidence presented in the affidavits submitted. Media 24 Books (Pty) Ltd simply submitted that the similarities between the dictionaries were so great that it demanded the rejection of evidence tendered by Oxford University Press.

The Court after considering the extent of the original work in the Oxford University Press publication and a number of other factors that counted against copying having occurred, concluded that that Media 24 Books (Pty) Ltd had failed to prove copying and accordingly its claim had been properly dismissed.

By
Pariksha Moodley
pariksha@dyason.co.za