Landmark copyright decision on fair dealing and other aspects of SA copyright law

Screen Shot 2016-05-06 at 17.19.22 PMOn 5 May 2016, the Gauteng High Court delivered the long awaited decision in Moneyweb v Media24. The case’s history is nicely captured here. In a nutshell, the case dealt with, among other things, the alleged copyright infringement of 7 articles published by Fin24, a part of Media24. Moneyweb had argued that through publishing these articles, Media 24 infringed its copyright by unlawfully copying, appropriating and/or plagiarising articles previously published by Moneyweb.

The dispute raised important issues regarding the substance and extent of copyright protection in news articles and the outcome clarified crucial aspects of South African copyright law, including fair dealing and the meaning of originality.

Three issues were at the heart of the decision: (1) whether Moneyweb’s articles were original, (2) whether Moneyweb had reproduced substantial parts of these articles, and (3) whether Media24 was absolved from liability by virtue of copyright exceptions and limitations (ss 12(2)(c)(i) [“fair dealing”] and 12(8)(a)).

The court first examined whether the Moneyweb articles in question were original. There is no definition of “original” in the Copyright Act. Dealing briefly with the “sweat of the brow” requirement for originality under South African copyright law, the court clarified that while “our law still regards the time and effort spent by the author as a material consideration in determining originality … the time and effort spent must involve more than a mechanical, or slavish, copying or existing material. In other words, there must be sufficient application of the author’s mind”. According to this standard, and in light of the lack of evidence provided by Moneyweb to establish originality in some of the articles based on information from press conferences, press releases, conference calls, and interviews, the court found that Moneyweb had only established originality in 3 of its 7 articles in question.

The court then briefly turned to s12(8)(a) and noted that this copyright exception – which exempts “news of the day” from copyright protection – does not apply to all current news, but only “to mere items of press information”. In that way, s12(8) is different to Article 2(8) of the Berne Convention from which it is derived. In determining whether the Moneyweb articles could be regarded as “news of the day that are mere items of press information”, the court ruled that this could only be the case if the work was not original. Hence, the 3 articles for which Moneyweb had established originality were not exempted from copyright protection through s12(8)(a).

The next question was whether Media 24 had reproduced substantial parts of one of these 3 articles. The court, firstly, clarified that in this context it was irrelevant whether the part used by Fin24 had been copied by Moneyweb from another source. However, the court found that, quantitatively and qualitatively, Fin24 had only reproduced a substantial part of one of the Moneyweb articles, namely “Amplats: CEO cites JSE rules”.

Finally, the court examined whether this reproduction was covered by the fair dealing provision of s12(1)(c)(i). According to s12(1)(c)(1)(i), copyright shall not be infringed by any fair dealing with a literary work for the purpose of reporting current events in a newspaper, magazine or similar periodical, provided that the source is mentioned, as well as the name of the author if it appears on the work. The court stated that providing a hyperlink sufficiently complies with the requirement that the source must be mentioned. For the rest, the court noted a lack of South African case law concerning fair dealing and therefore, cautiously, considered English case law, under consideration of the Constitution of South Africa, 1996. On this basis, the court identified a non-exhaustive list of factors relevant to a consideration of “fairness” within the meaning of 12(1)(c)(i): the nature of the medium in which the works have been published; whether the original works has already been published; the time lapse between the publication of the two works; the amount (qualify and quantity) of the work that has been taken; and the extent of acknowledgement given to the original work. The court, however, noted that fairness remains an elastic concept and determining “fair dealing” therefore still involved a value judgment that depends on the particular facts or circumstances at the time of dealing.

Against this backdrop – and with perhaps too cursory an examination of each of the aforementioned fairness factors – the court held that by taking and reproducing the core of Moneyweb’s article “Amplats: CEO cites JSE rules” Fin24 infringed Moneyweb’s copyright and was therefore liable for the damages suffered, the amount of which is still to be determined. However, the court ruled that an interdict was not warranted since the harm is no longer continuing. Since Fin24 has been substantially successful in defending the claims against Moneyweb, Moneyweb was ordered to pay 70% of Fin24’s costs.