The recent decision involving Moneyweb and Media24 (Moneyweb (Pty) Limited v Media 24 Limited & Another [2016] ZAGPJHC 81) (full text available here) is an important one for copyright lawyers in South Africa because it is the first time that two provisions relating to news reporting of the Copyright Act 1978 (the Act) have been judicially considered, namely, sections 12(1)(c)(i) and 12(8)(a). In fact, it is the first time that the application of the fair-dealing provision, section 12(1), has received any judicial consideration, whether in the context of news reporting or otherwise.
Facts
The facts of the case were fairly straight-forward. The applicant (“Moneyweb”) and the first respondent (“Media24”) were (and still are) competing, online publishers of financial news. Moneyweb claimed that the publication of seven articles by Media24 amounted to copyright infringement of previous articles which Moneyweb had published, alternatively, that such publication constituted unlawful competition. There were, thus, in effect seven separate claims for copyright infringement of literary works. Accordingly, the court had to determine the following: whether Moneyweb’s previously-published articles were protected by copyright (i.e., were original); whether Media24’s articles reproduced a substantial part of the corresponding Moneyweb article (in light of the statutory exclusion in section 12(8)(a) of the Act), and, therefore, prima facie infringed Moneyweb’s copyright in its previously-published articles; and, if there was prima facie infringement, whether Media24 had any statutory defences pursuant to sections 12(1)(c)(i).
Originality
The court repeated the well-accepted legal position about when a work can be said to be original, namely, if its creation involved the expenditure of time and intellectual effort on the part of its author, and the result was not the production of a slavish copy of another’s work. A news article would be original to the extent that it consisted of more than just a slavish copy of the transcription of an interview with a person of interest, which would be the case where the author applied his mind to extracting salient quotes, incorporating some background, and providing his own views or observations.
Although the creation of an original work may incorporate existing material, the court held that a press article that was largely a copy of existing material, the transcription of a press statement, a press release (or statement) or presentation to (or conference call with) the media (with trivial or insubstantial differences) will not be original. The court held that four of the articles Moneyweb relied upon lacked originality as there was insufficient evidence of what the nature and extent of the particular author’s contribution was to the particular published article. A mere assertion on the part of the author that he or she expended significant skill and labour in producing a news report was insufficient to make a finding that it was original. In relation to these articles, the court, thus, did not have to consider the allegations of copyright infringement.
Although news articles may qualify for copyright protection, by virtue of being original, the scope of protection which they enjoy may be narrower than other literary works as a consequence of sections 12(1)(c)(i) and 12(8)(a) of the Act.
Items of press information
Pursuant to section 12(8)(a), “items of press information” are not be protected by copyright. This will include all information communicated to the press by persons in the knowledge that it will be put into the public domain and would include information disclosed at press conferences, press statements, and information provided to the media on request or by way of interviews. Thus, in determining whether a substantial part of a news article has been copied, any items of press information have to be discounted.
Moreover, the copyright protection which a news article may enjoy is subject to the fair-dealing exception provided for in section 12(1)(c)(i) of the Act. However, the fair dealing provision, section 12(1), acts as a defence to a claim of copyright infringement, and only applies if there has been a reproduction of a substantial part of a copyright work.
Reproduction of a substantial part
The assessment of whether a substantial part of a copyright work has been reproduced involves a value judgement based on the work as a whole, determined qualitatively, rather than quantitatively. In the case, the court held that a substantial portion of two of (the remaining three) Moneyweb articles had not been copied in the corresponding Media24 articles. In relation to the one article, the court held that only a small portion was copied: five paragraphs from a much longer article were copied. The headline and introductory paragraphs (which included some of the five paragraphs) did not constitute a substantial portion. Media24’s later article also did not deal with the same topic. In the case of the second article, the court held that the portions taken were not substantial as they did not summarise: the interview conducted by Moneyweb for its article, or the portion of Moneyweb’s earlier article which dealt with the topic of Media24’s later article. Thus, in relation to these two articles, Moneyweb failed in its claim for copyright infringement.
The remaining Moneyweb article was copied verbatim, and the court, therefore, concluded that Media24 reproduced a substantial part thereof. This, of course, meant that the court had to consider the possible defence pursuant to the fair-dealing exception provided for in section 12(1)(c)(i) of the Act.
Fair-dealing exception
There are three key aspects which a party has to establish if it wishes to rely on section 12(1)(c)(i): the purpose of the use must be to report current events; the use must be “fair”; and, there has to be the necessary attribution. The phrase “reporting current events” must be given its ordinary, wide meaning. Any event that is relatively close in time will qualify. It need not be an event that has occurred on the day of the report.
Whether use is fair involves a value judgment; it is a matter of fact, degree and impression. The factors relevant to a consideration of fairness for purposes of reporting current events include: the nature of the medium in which the works have been published; whether the original work has already been published; the time lapse between the publication of the two works; the amount (quality and quantity) of the work that has been taken; and the extent of the acknowledgement given to the original work. In the particular case, the factors which led the court to find that Media24’s use of Moneyweb’s article was not fair were the following: the Media24 article was published within seven hours, and on the same day as Moneyweb’s article; the Media24 reproduced Moneyweb’s article verbatim, and did not have much additional material; and, the Media24 article was likely to be a substitute for the Moneyweb article.
As for the required attribution, in the context of online publications, the use of a hyperlink to the copyright work is the most effective way of informing the reader of the identity of the author, and satisfies the statutory attribution requirement. It is not necessary that the names of the authors of the copyright work be mentioned in the other article which incorporated a substantial part thereof.
Unlawful competition
For works which are protectable by copyright, the courts will be reluctant to find that conduct amounts to unlawful competition where that conduct does not amount to copyright infringement i.e., where a copyright work has lawfully been used. Accordingly, unlawful competition had not been established.
Conclusion
It is, of course, the case that the determination of whether a work is original, or whether a substantial part of a copyright work has been reproduced, involve value judgements, by the court. However, the fact that the court considered four of the seven Moneyweb articles as lacking originality (and, therefore, ineligible for copyright protection) does come as a surprise, particularly given the length of each article. It is not clear whether the court has established a higher test for originality than the traditional “sweat of the brow” approach. Having said that, the court’s assessment was influenced by the fact that Moneyweb had not adduced sufficient evidence indicating the effort involved in the writing of those articles. Moneyweb, to its detriment, probably assumed that the court would take it on face value (or take judicial notice) that writing a news report involves the requisite, substantial (or non-trivial) effort for copyright protection. The case is a valuable lesson in making out a proper case for originality, rather than simply claiming that the work relied upon is original.
The manner in which section 12(8) is meant to operate is not clear. First, the judgment suggests that a news report is not protected by copyright to the extent that it contains “items of press information” but that the remaining portion could still be eligible for copyright protection i.e., could still be original. In other words, there is no indication that the mere presence of “items of press information” will exclude the work from copyright protection. Second, the court does not expressly state whether “items of press information” should already be discounted when determining whether a work is original, or only when determining whether a substantial portion has been copied. Given the order in which the court proceeded with its analysis, it appears that “items of press information” were in fact discounted in its determination of whether the news articles were original.
At last we now have some guidance in relation to the fair-dealing exceptions concerning news reporting, namely, section 12(1)(c)(i). It is clear that wholesale copying of a news article will, generally, not be permissible. Also, news aggregation per se does not amount to copyright infringement. The approach is generally consistent with the interpretation of the equivalent provisions under English law.
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