Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Navsa JA, Theron JA, Wallis JA, Petse JA and Willis JA
• Judgment Date: 16 September 2016
• Citation: 2017 (2) SA 1 (SCA)
• Docket Number: 886/2015 [2016] ZASCA 119
• Hearing Date: 30 August 2016
• Counsel: AR Sholto-Douglas SC (with BJ Vaughan) for the appellant.WRE Duminy SC (with AE Erasmus) for the respondent.
• Court: Supreme Court of Appeal

Wallis JA (Navsa JA, Theron JA, Petse JA and Willis JA concurring):

[1] This is a tale of two dictionaries of a type that many South African schoolchildren, present and past, would recognise. They are bilingual Afrikaans – English/English – Afrikaans dictionaries, the purpose of which B is to assist learners using one of English or Afrikaans as a base to obtain a knowledge and understanding of the other language. Both are relatively small with no more than 4000 – 5000 entries in each language. These reflect a basic vocabulary incorporating the most commonly used words in each language. Each entry consists of a specific headword [1] and C identifies the part of speech (noun, verb, adjective, etc), or parts of speech, [2] of the word; gives the equivalent word in the other language; and provides a short sentence or sentences illustrating its meaning or the different shades of meaning that it possesses. If the entry is in respect of an Afrikaans word the sentence illustrating its meaning will be in D Afrikaans and then be translated into English and vice versa.

[2] In point of time the first dictionary to be published was published by a predecessor of the appellant, Media 24 Books (Pty) Ltd (Media 24). It was initially entitled Tweetalige Aanleerderswoordeboek, and the first edition was produced in 1993. It received favourable reviews as being an E advance on what had previously been available. It was republished under the name Pharos Aanleerderswoordeboek vir Skole in 2006. For convenience I will refer to it as the Aanleerderswoordeboek. [3] The respondent, Oxford University Press Southern Africa (Pty) Ltd (OUP), published its work, the Oxford Afrikaans – Engels/English-Afrikaans Skool Woordeboek (the Oxford Woordeboek), in 2007. It too received favourable reviews. F The two are competitors in the marketplace.

[3] In October 2011 Media 24 commenced preparations for a new bilingual Afrikaans – English dictionary to replace the Aanleerderswoordeboek. It is customary when a publisher decides to do this for it to G investigate the market and examine competing and potentially competing dictionaries in order to decide how to compile its own work in a manner that will be commercially successful in the target market. Although we were not told specifically what first provoked suspicion, Media 24's employees came to the conclusion, after looking closely at H the Oxford Woordeboek, that to a substantial extent it had been copied

Wallis JA

from the Aanleerderswoordeboek. After taking legal advice and undertaking A further investigations, using independent experts, it launched proceedings in the Western Cape Division of the High Court claiming that OUP was guilty of a breach of its copyright in the Aanleerderswoordeboek and sought interdictory and other relief. Gamble J dismissed the application and refused leave to appeal. The appeal is with the leave of this court. B

Preparing a dictionary

[4] The preparation of a new dictionary is not a simple matter and involves a substantial amount of planning. Small basic bilingual dictionaries, such as the two in issue in this case, are divided into two sections, C one each for words drawn from the two languages. So these two dictionaries have an Afrikaans side and an English side. On each side the first step is to identify the words constituting the core, basic vocabulary in that language. These words, which are not necessarily common to both sides, [4] are the headwords on which each entry is based. The entry translates each word into its equivalent or equivalent in the other D language. It identifies the relevant part of speech and frequently used inflections of the word, such as plurals of nouns, or adverbs derived from verbs.

[5] Where a word has more than one meaning all relevant meanings must be identified. If the different meanings E arise because the word can be used as more than one part of speech, for example, as both a noun and a verb, they are reflected separately and distinguished by the identification of the relevant part of speech. [5] Where the word bears different meanings in different contexts, [6] these must be identified and placed in order, with the most significant and widely used meaning first and the F others following in declining order of importance. In a basic bilingual dictionary aimed at learners of one of the languages, only the more significant meanings are given and more subtle linguistic usages are omitted.

[6] Potentially the most significant task in compiling a dictionary is the G preparation of sentences or phrases that explain and illustrate the meaning of a word. Not all dictionaries have this. Large-scale explanatory dictionaries of a single language often achieve the same purpose by

Wallis JA

A means of quotations from publications in which the word has been used. [7] In dictionaries of the type under consideration, the compiler formulates short sentences, referred to as example sentences, illustrating the use of the word in context. Because the dictionaries are aimed at schoolchildren, it is important that these sentences should be consistent with their life experience so that the meaning may more easily be B grasped. [8] In practice this means that the illustrative sentences will be relatively simple both in structure and theme.

Media 24's case

[7] In the founding affidavit of Dr Wanda Smith, herself a lexicographer, C Media 24 identified three areas where it claimed that the Oxford Woordeboek had copied its Aanleerderswoordeboek. They were in the compilation of the headwords or lemmas on both the Afrikaans and the English sides of the dictionary; in the ordering of senses with words having more than one sense; and in the example sentences used in both the Afrikaans and English sections of the dictionary. These latter, it D contended, had either been copied directly or had been loosely adapted while following the same themes, sometimes by the alteration of a single word. In support of these contentions it put up an affidavit and report by Dr Anton Prinsloo (to whom I will refer as Dr Prinsloo to distinguish him from Professor Prinsloo who features later in the narrative), an E academic from Stellenbosch University, who had examined the entries in the two dictionaries for four letters (B, D, I and S) on both sides and identified where they overlapped in all three aspects. The relevant pages containing those letters extracted from the two dictionaries were attached to Dr Prinsloo's report and highlighted in marker pen. In addition, he compiled two schedules reflecting the example sentences that he F regarded as problematic.

[8] Dr Prinsloo's analysis of the areas in which he found commonality between example sentences in the two dictionaries fell into three broad areas. The first instances were where the example sentences were exactly the same. In relation to the word 'baie' both dictionaries included as a G sentence illustrating one meaning of the word: 'Baie dankie vir jou hulp.' The second involved only a small change as reflected in the case of the word 'brightly' where the two sentences read: 'The sun is shining brightly' and 'The sun is shining brightly today'. Thirdly, there were words where he identified thematic commonality, as with 'behaal' H ('achieve'), where the sentences were: 'Christine het baie hard gewerk

Wallis JA

om sukses in die eksamen te behaal' and 'As jy hard werk, kan jy sukses A behaal'. I will refer collectively to these different incidents of overlap between the two dictionaries as correspondences. The extent of such correspondences emerged from a statistical analysis undertaken by Prof Martin Kidd, a statistician, the thrust of which was that the degree of overlap between the two works in regard to the example sentences was of B the order of 16 – 24% when the statistical analysis was conducted on the basis of a random selection of words.

[9] By the time the matter came before the High Court, the complaint in regard to the commonality between the headwords in the dictionaries C had been abandoned in the light of the evidence of Prof Daniel Prinsloo, an academic from Pretoria University (referred to as Prof Prinsloo to distinguish him from Dr Prinsloo, who is mentioned above), concerning the manner in which he compiled the list of headwords used in the Oxford Woordeboek. Some argument was addressed to the allegations of similarity in regard to the order of senses in respect of certain words, D but little turned on this, presumably because there were few examples of this complaint and a substantial rebuttal of the objection. The focus of the argument, as it was also in this court, was the extent of the alleged copying of the example sentences. That was always the decisive issue. If there had been substantial copying, then the claim of breach of E copyright had to succeed. If not, it was not suggested that there was sufficient strength in the alleged commonality of sense orders to justify a conclusion of copying of an extent that would warrant the grant of relief.

[10] In making its case in relation to the example sentences, F Media 24 nailed its colours to the mast of the correspondences identified by Dr Prinsloo. It did not rely, as publishers of works such as directories and dictionaries sometimes do, on having set a copyright trap in the work and identifying copying because the Oxford Woordeboek fell into the trap. A copyright trap involves the insertion of a false word or false information or a deliberate error in the work, which if it appears in a competing G work is indicative of copying having taken place. [9] Media 24's allegation of breach of copyright was based squarely on the correspondences between the example sentences in the two dictionaries. After citing a number of these in his heads, counsel summarised the submission by saying that: H

'The appellant could continue in this vein...