In the case of Moneyweb (Pty) Ltd vs Media 24 Ltd and 1 other, which was heard in the Gauteng Local Division, Johannesburg, Moneyweb alleged that Media 24 had infringed its copyright in certain of its literary works. Both Moneyweb and Media 24 – often through its financial branch, fin24 - publish business, financial and investment news on the Internet. Moneyweb alleged that Media 24 had unlawfully “copied, appropriated and/or plagiarised” 7 of its online articles. The court dealt exhaustively with the law relating to copyright, in as far as it applies to the test for originality, infringement and the rights of journalists and media houses to use a work of others in their publications.
Moneyweb had to show that copyright subsisted in the works, that substantial parts of the works were copied and that the copying and republishing by Media 24 did not constitute fair dealing.
The Copyright Act No 98 of 1978 (the “Act”) provides that certain works, including literary works, shall be eligible for copyright if they are original. As the issue at hand relates to news articles, it is common cause that the articles are “literary works”. Copyright in a literary work vests the exclusive right to copy (reproduce) the work.
What constitutes “Original”?
As stipulated in Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA) at 473A-B, par 35, a work is eligible for copyright if it is considered to be original “if it has not been copied from an existing source and if its production required a substantial (or not trivial) degree of skill, judgment or labour”. Therefore, in order for a work to be considered original, it needs to have been the result of the author’s own skill and labour; even if the skill and labour expended relates to the compilation of material from other sources that are non necessarily the author’s own. How much skill and labour is required to make a work original can only be dealt with on a case-specific basis, as this remains a value judgment and will differ from case to case.
Moneyweb: A case of failing to prove originality
The first article complained of by Moneyweb, was written by the author after she had attended a press conference. She stated that she attended the conference, took notes and asked questions. The court found that this was not enough to show that the eventual article that she wrote was original; i.e. that she expended enough independent skill and effort to create the article. There was no evidence as to how her article compared to the material on which it was based. She also did not make her handwritten notes available. The court found that Moneyweb had not established originality of the work. There was thus no need to proceed to the question of infringement; which would have been the next step, after proving originality.
In all, Moneyweb was unsuccessful to show originality in 4 of the 7 articles complained of.
An important message for Journalists: Protect your IP
An important lesson is to be learnt from this case, especially for journalists. The lesson is that an author should keep very accurate record of what they do. We suggest that journalists keep the source material (such as a complete recording of the press conference and/or any written documentation handed out), all notes that are taken, and all drafts that are compiled to arrive at the final work. In fact, notes should be actively taken, including notes of questions asked by them and by others. All notes should be as complete as possible. This applies equally to all copyright works such as broadcasts, source code, computer programs, works of art, other literary works including making compilations of information or data and the like. If you keep all this information, you should be a long way down the road to proving originality.
Copying: How much is enough to infringe?
Copyright infringement occurs only if a substantial part of a copyrighted work is copied. The court reiterated the guidelines of what constitutes copying of a substantial part. Substantially depends both on the quality and the quantity of what is copied. There must be sufficient object similarity between the original and the copy and some indication that the copy was in fact derived from the original i.e. that the original was used as the source for the copy. There must thus be some causal connection.
In determining whether a substantial part has been copied, a court must make a value judgement. Each case will thus be judged on its own merit.
In the present case the court found that Media 24 had substantially copied the fifth article complained of by Moneyweb. The court stated that “Much of Fin24 5 is a word-for-word copy of Moneyweb 5. In addition, Moneyweb 5 focusses on two main issues: Mr Griffith’s response to Minister Shabangu and the effect of the JSE regulations on Anglo Platinum’s conduct. Both issues, the core of Moneyweb 5, have been reproduced in Fin24 5. Accordingly, Fin24 has indeed reproduced a substantial part of Moneyweb 5.”
The court also reminded that the copied article was published 7 hours after the original was published. Timing may thus also play a part in determining importance (substantially/quality) of copying.
When is it fair to copy?
It is fair to copy a copyrighted literary or musical work if the purpose of the copy is for reporting current events, provided that the source and the name of the author is mentioned. Fairness is an elastic concept. There is no hard and fast rule and each case, yet again, must be judged on its own merits. You cannot enjoy copyright in a line or two that reports current events. However, if your expended skill and effort to arrive at some fanciful text, albeit a line or two, you might very well enjoy copyright.
If you do copy someone’s work, we suggest that you mention the source and the author and not only insert a hyperlink. This is due to the Act specifically referring to the need for the author and source to be cited. Remember that such copying may still become unfair especially in cases where your article becomes a commercial success to the deferment of the copied article.
The Moneyweb case is in no way a landmark case. It repeats the law in respect of originality, infringement (copying) and fair dealing.
However, as we have so many times experienced at Bredenkamp Attorneys, it is essential for clients to keep a thorough record of all information and related work, to make it possible to prove originality in a copyright case. Without proper records to prove originality, a case will fail before it has even begun. Originality must be proven before the question of copyright infringement can be addressed. Journalists must thus ensure that all documents used and made by them, in their efforts to create their final work is kept, including third party documents. If one cannot prove originality there is no point to embark on a court case as it would be destined to fail.