“[40] The argument for Media24 seems to me to fall into the trap of being misled by what has been referred to as similarity by excision.  In IPC Media ([2004] EWHC 2985 (Ch); [2005] F.S.R. 20 at para 11) a case that in the way it was conducted bears a close resemblance to this one, the point was made that in order to establish breach of copyright all the evidence must be examined, not only that which points in the direction of copying. Laddie J said:

‘In copyright cases, chipping away and ignoring all the bits which are undoubtedly not copied may result in the creation of an illusion of copying in what is left. This is a particular risk during a trial. Inevitably the court will be invited by the claimant to concentrate on the respects in which his work and the alleged infringement are similar. But with sufficient concentration one may lose sight of the differences. They may be just as important in deciding whether copying has taken place.’

It is important to heed this warning. In order to appreciate this point it is necessary to examine closely the facts in regard to matters where there was no allegation of copying. In other words, in order to deal with the contention that the correspondences alone sufficed to carry the day in favour of copying, we must look at the evidence on behalf of OUP that its dictionary was compiled without copying.  Only then can the merits of the argument that we must reject this evidence, based on the correspondences alone, be assessed”.

Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd   (886/2015) [2016] ZASCA 119 (16 September 2016) per Wallis JA (Navsa, Theron, Petse and Willis JJA concurring)

SCA summary:

Copyright – dictionary – proof of copying – correspondence of example sentences in bilingual dictionary directed at learners aged ten to sixteen – similarity raising suspicion of copying – evidence by compilers of methods used to compile example sentences – lack of access and reference to appellant’s dictionary – explanation for similarity that such inevitable in a work of this type – disputes of fact not resolved by trial – onus of proving copying not discharged on the basis of similarity alone.

Excerpts without footnotes

[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 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 4 000 to 5 000 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 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 Afrikaans and then be translated into English and vice versa.

. . . . .

[10]     In making its case in relation to the example sentences Media24 pinned 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 work is indicative of copying having taken place.  Media24’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:

‘The appellant could continue in this vein indefinitely.  The similarities are simply too numerous to consider individually.  … It is submitted that the overwhelming impression that remains is that of copying and the explanation proffered by the respondent of “common phrases” and “saliency” is simply insufficient to disturb the probabilities in this regard.’

So, like counsel, I will focus on the issue of copying in relation to the example sentences.  But first it is necessary to deal with the legal framework of the enquiry.

The law

[11]     There was no real dispute about the law to be applied in this case. A dictionary is a literary work for the purposes of the Copyright Act 98 of 1978 (the Act).  As such the Aanleerderswoordeboek was, on publication, a literary work eligible for copyright.  The holder of copyright in a literary work is vested with the exclusive right to reproduce the work in any manner or form.  Copyright is infringed where any person, not being the owner of the copyright and without the licence of such owner, does any act that the owner has the exclusive right to do.

. . . . .

[18]     Counsel correctly submitted that in the absence of direct evidence of copying – which is usually hard to come by – establishing substantial similarity between the original and the alleged infringing work together with proof of the possibility of access by the alleged infringer to the original work, suffices to raise a prima facie case of copying.  It is then for the alleged infringer to show how its work was produced without copying. A bare denial of having copied is unlikely to displace the inference arising from proof of similarity and access to the original.  An explanation of the process adopted in producing the alleged infringing copy that plausibly explains the reasons for the similarity between them will usually be called for.  But the onus is not thereby shifted to the alleged infringer.  It is always for the claimant to establish copying on the ordinary standard of proof, namely, a balance of probabilities.

. . . . .

[36]     Media24 chose not to pursue this case by way of trial. Nor did it ask for the matter to be referred to oral evidence.  In asking for it to be decided on the affidavits alone, it therefore bound itself to the long established approach described in Plascon Evans.  That meant that the case could not be determined simply on a weighing of the probabilities as they emerged from the affidavits.  The facts deposed to by OUP’s witnesses had to be accepted, unless they constituted bald or uncreditworthy denials or were palpably implausible, far-fetched or so clearly untenable that they could safely be rejected on the papers.  A finding to that effect occurs infrequently because courts are always alive to the potential for evidence and cross-examination to alter its view of the facts and the plausibility of evidence.

. . . . .

[39]     It is apposite to mention that counsel was invited to indicate in what manner the alleged copying had occurred. No clear answer to that question emerged in the course of argument.  The drumbeat of the argument was simply that the correspondences were so extensive as to rebut any evidence or any probability pointing in the opposite direction.  That is not a proper approach.  As Harms JA once said:

‘It is manifestly unfair to argue a case on inferences from some facts and ignoring unchallenged direct evidence to the contrary.’

The circumstances in which a conclusion can be reached on credibility without hearing oral evidence are rare.

. . . . .

[51]     Two comments remain to be made. The first is that I have not dealt in detail with the possibility that the alleged copying occurred during the editorial phase under Dr Louw.  The reason is that the argument centred around the compilers and it was not suggested that, if they were not guilty of copying, Dr Louw and his editorial assistants had discarded some of their work and engaged in copying during the editorial process.  The improbability of that occurring was considerable.  Not least of many points that could be made is that there would have been no purpose in discarding the work of the compilers for which OUP had paid, in favour of copying from the   Again, however, the illumination that cross-examination would have thrown on this issue was absent because of the manner in which Media24 elected to conduct its case.

[52]     The second is that the task that Media24 set for itself in trying to discharge the onus of proving copying on the papers without oral evidence was an onerous one. In the three cases referred to in argument where a court rejected a denial of copying by the author of the infringing work that occurred only after a full trial.  In Bron, Da Vinci Code and IPC Media the denial of copying was accepted after trial.  It seems to me that it will only be in the most egregious case that a court will reject a denial of copying merely on the basis of comparing the two works and without cross-examination of the author or authors of the alleged infringing work.  It suffices to say that this is not such a case.