/ 22 September 2016

Media24 loses its war of words with Oxford over woordeboek

Media 24 offices in Parktown
Media 24 offices in Parktown

It just does not seem likely that global publisher Oxford University Press copied from a local dictionary when it broke the monopoly on Afrikaans-English dictionaries for pupils in 2007, the Supreme Court of Appeal has ruled, bringing to an end one of only two dictionary copyright fights in modern history.

Late last week, the court dismissed with costs an appeal by Media24 Books in which the Naspers subsidiary argued that Oxford has lifted large swaths of its specialist dictionary for schools. That copied intellectual property was used to publish a dictionary that undermined Media24’s own previously lucrative one, it said. And, when caught in the act, Oxford had offered up “palpably implausible, far-fetched” explanations, Media24 said.

Media24 enlisted two doctors and a professor to back its case, who in turn used methods ranging from statistical sampling to highlighter pens in different colours to show the similarity between “the sun is shining brightly” and “the sun is shining brightly today” in the two competing dictionaries.

Oxford’s own team of three professors and two doctors won over the court, as it had the high court in Cape Town in 2015. Not only had Media24 failed to prove copying, but the lexicographers it had accused seemed to have “nothing to gain and everything to lose”, the appeals court said.

With Media24 obstinately refusing to let the matter go to trial with oral evidence, giving the courts the benefit of cross-examination of claims and a chance to test the independence of expert witnesses, Judge Malcolm Wallis said, on behalf of a full Bench, its application to have the Oxford dictionary pulled from the shelves had to fail.

But that conclusion came only after a long meander through the world of lexicography, logical fallacies, the misreading of statistics and made-up words.

Dictionary publishers sometimes try to catch rivals of copyright theft by including imaginary words, the court noted, such as the famous case of “esquivalience” (the wilful avoidance of one’s official responsibilities).

Media24 had not set such a trap but relied on the “drum beat” that similarities between the two dictionaries “were so extensive as to rebut any evidence or any probability” that there had not been copying.

In doing so, the court said, it seemed as if Media24 had itself fallen into a trap, that of “similarity by excision”, or ignoring all the bits not copied. It also explained why correlation does not imply causation – a favourite maxim of statisticians – and went on something of a judicial frolic to calculate the odds of three upstanding people, say dictionary-compiling subcontractors, independently deciding to plagiarise (which are apparently 27 in 1 000).

The appeal court did not make a finding on the raging lexicographical dispute on whether a bilingual dictionary must list all the words it has in one language in the other language too.

Though copyright disputes are common, dictionary copyright disputes are rare. The only reported case the appeal court could uncover was a 1955 matter that ended up before the Madras Court of Appeal, in which an English-Tamil dictionary had been “slavishly copied”.

Media24 Books and a sister subsidiary have found themselves on the other side of two more mundane, and more complicated, copyright matters in recent months.

In May, the high court in Johannesburg said Media24 owed online publisher Moneyweb damages for copying one of its articles for publication on its Fin24 website. The court dismissed Moneyweb claims about the copying of several other articles.

Earlier this month, independent online magazine The Con said a Media24 book imprint had threatened it with legal action unless it admitted to not having copyright over an article Media24 published in a book compilation. The Con had accused Media24 of failing to acknowledge it as having first published the article.

Asked whether it had any plans to pursue its claim against Oxford, Media24 on Wednesday said it had no further recourse in law.