A tale of two dictionaries - the difficulty of proving copyright infringement

Media24’s allegation of copyright infringement was predominantly based on the substantial similarity in the example sentences included to illustrate the use of each word defined in the “Oxford Woordeboek”. Both dictionaries were small in size, aimed at school children and as such, were quite uncomplicated. However, Media24 believed that the correspondence between the two works could have only been achieved through repetitive reference to its work.

In theory, identifying and proving whether or not there has been an infringement of copyright, may seem like an easy task but as the matter in point illustrates, this is not always the case. In the case of Baigent and Another v The Random House Group Ltd, Mummery LJ stated that: “it is easier to establish infringement of the copyright in a literary work if the copying is exactly word for word or if there are only slight changes in the wording, perhaps in some optimistic attempt to disguise plagiarism”. Matters become trickier when the copying is not as obvious.

To establish a prima facie case that copying had occurred, Media24 had to demonstrate a substantial similarity between the original work and the alleged infringing work and it had to also prove that the Oxford University Press had access to Media24’s dictionary. This was achieved, which shifted focus on the Oxford University Press to show how its dictionary was compiled.

The importance of documenting one’s methodology in creating a literary work cannot be over emphasised as such records play a crucial role in countering any allegations of copying and in the present case, the compilers of the Oxford Woordeboek were able to attest to the methods used to compile the Oxford Woordeboek and were further able to provide a plausible explanation for the similarity between the example sentences contained in the Oxford Woordeboek. The Oxford University Press also lead expert evidence that it is more difficult to establish copying in a reference work such as a dictionary than in the case of novels, song books or textbooks. This is due to the fact that a reference work is an assemblage of generally available knowledge and thus there is likely to be a larger degree of correspondence between such works.

In dismissing Media24’s claim, the court emphasised the importance in copyright infringement matters of not falling “into the trap of being misled by what has been referred to as similarity by excision”. In this regard, the court found that Media24’s narrow focus on the extensive similarities in the wording of the illustrative examples had been an incorrect approach in that in order to establish a copyright infringement all evidence had to be examined and not only that which created an illusion of copying. Of equal importance was the evidence of the Oxford University Press that its dictionary was compiled without copying which Media24 had not managed to refute.

What also did not assist Media24 was its election to resolve the matter on application as opposed to trial proceedings. This eradicated the opportunity to challenge the credibility of the Oxford University Press’ witnesses and the possibility of arriving at a different outcome.