What is determined as copyright infringement?

July 1st, 2016
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Moneyweb (Pty) Ltd v Media 24 Ltd and Another (GJ) (unreported case no 31575/2013, 5-5-2016) (Berger AJ)

By Kathleen Kriel

The applicant, Moneyweb, and the respondent, Media24 are both media houses who are in the business of publishing articles on the Internet. Moneyweb and Media24 are direct competitors.

In this matter, Moneyweb contended that Media24 infringed its copyright under the Copyright Act 98 of 1978 (the Act). Moneyweb contended that seven articles, which were first published on their website, were unlawfully copied, appropriated and/or plagiarised by Fin24, although the articles were not published verbatim.

In their extensive heads of argument, three issues were at the centre of the matter, namely:

  • A dispute concerning the originality of Moneyweb’s articles, which Media24 argues that Moneyweb failed to prove originality.
  • If Moneyweb was able to prove originality in the article, the next issue is whether Media24 reproduced a substantial part of the article. Media24 admitted to reproducing part of the Moneyweb articles but denied that the reproduction was substantial.
  • Media24 contended that it is absolved from liability by virtue of its defence in
    s 12(1)(c)(i) and 12 (8)(a) of the Act.

Originality

According to the court, there is no definition of ‘original’ in the Act and creativity is not required to make a work original. In Haupt t/a Soft copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) at para 35, the court held that a work 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.’ However, it was still possible to achieve originality even where the author of a work makes use of existing material.

Berger AJ said that there was some dispute whether the ‘sweat of the brow’ test was a part of South African law. ‘It seems to me that the expression “sweat of the brow” is imprecise and capable of being misunderstood. A court will only be able to determine originality after it has weighted up all relevant considerations and made a value judgment. Our law still regards the time and effort spent by the author as a material consideration in determining originality. But the time and effort spent must involve more than a mechanical, or slavish, copying of existing material’ (at para 15).

Synopsis of articles

The court had to consider each of the seven articles placed before it. Each is discussed shortly:

  • The first article, ‘Annual packages for MPs may reach well over R1m’ (Moneyweb 1), was published on 25 July 2012 and was written by Kim Cloete, a freelance contributor contracted to Moneyweb. The court held that more evidence was required to establish that this article was original, as the article was based on information that was made available at a press conference. The court referred to Pyromet (Pty) Ltd v Bateman Project Holdings Limited and Another 2000 BIP 355 (W) at 359, where Nugent J said: ‘Where existing material has been used to create the relevant work, there may well be cases in which detailed evidence will be required as to the manner in which the work was created to show that, notwithstanding use being made of an existing work, the nature and extent of the author’s contribution was such as to constitute more than mere copying.’

Berger AJ went on to say: ‘I do not know how much of this article is Ms Cloete’s own work or simply a repetition of what was said in her presence or contained in a written press release. … I find that Moneyweb has not established that Moneyweb 1 is an original work’ (para 24 and 25).

  • ‘Group Five hits rock bottom’ (Moneyweb 2) was published on 13 August 2012 and was written by Sasha Planting, a freelance contributor contracted to Moneyweb. Ms Planting wrote the article after participating in a conference call. The same issue applied in Moneyweb 2 as in Moneyweb 1. The court could not distinguish how much of the article was a repetition of what was said in the authors presence and concluded that Moneyweb did not establish that the article was an original work.
  • ‘McDonalds plans to launch McKitchen’ (Moneyweb 3) was first published on 26 August 2012 and was written by Eleanor Seggie, an employee of Moneyweb. Ms Seggie wrote the article after she and two other journalists from other media groups visited the site of the restaurant. Again, the court could not establish how much or the article was Ms Seggie’s own work or how much was repeated from the media visit and the court concluded that Moneyweb had not established that Moneyweb 3 was an original work.
  • ‘Hout Bay castle sold for R 23m’ (Moneyweb 4) was published on 14 September 2012. The article was written by the late Michel Schnehage, a property journalist contracted to Moneyweb. Although there was no direct evidence, the court held that the article was largely a copy of the press release and there was not enough contributed to produce an original piece of work. The court found that Moneyweb had not established that Moneyweb 4 was an original work.
  • ‘Angloplats’ Griffith responds to Shabangu outburst’ (Moneyweb 5) was published on 16 January 2013 and written by Ryk van Niekerk, an editor at Moneyweb. The interview was aired on a radio programme on 15 January 2013 and was recorded and transcribed by Mr Van Niekerk to source quotes from Mr Griffith for the article. The court held: ‘In my view, Mr Van Niekerk applied his mind to the transcript and sought to write an article that captured the essence of the interview with Mr Griffith. … It is clear that Mr Van Niekerk has not slavishly copied from the transcript. In the circumstances, I am satisfied that Moneyweb has proved that Moneyweb 5 is an original work’ (at para 44 and 45).
  • ‘Defencex mastermind rallies support’ (Moneyweb 6) was published on 9 March 2013 and was written by Malcolm Rees, an employee of Moneyweb. Mr Reese wrote the article after attending an event at the University of the Witwatersrand. Mr Rees purchased a ticket for R 800 to gain access to the event. The court was satisfied that Moneyweb produced enough evidence to establish that Moneyweb 6 was an original work, due to the event not being open to the media and it was unlikely that there would have been a press release about the event.
  • ‘Chris Walker breaks the silence’ (Moneyweb 7) was published on 1 July 2013 and was written by Mr Rees. On 30 June, Mr Rees interviewed Mr Walker by posing as a prospective investor and was the only one who interviewed Mr Walker. He wrote the article after the interview. The court was satisfied that Moneyweb 7 was an original work.

Section 12(8)(a) of the Act

Section 12(8)(a) of the Act provides:

‘No copyright shall subsist in official texts of a legislative, administrative or legal nature, or in official translations of such texts, or in speeches of a political nature or in speeches delivered in the course of legal proceedings, or in news of the day that are mere items of press information’ (the court’s emphasis).

Three categories of works are covered in the above section, namely,

  • official texts and their translations;
  • political and legal speeches; and
  • certain news of the day.

Official texts include: Statutes, regulations, court judgments and government notices. Burger AJ added that awards and rulings of administrative tribunals would be included and recognised that the list was not exhaustive. The court held: ‘“Speeches” in this context means speeches that have been reduced to material form. … A speech that has not been reduced to material form is not eligible for copyright, regardless of the provisions of section 12(8)(a)’ (para 61).

The court held that s 12(8) appears to be derived from art 2(8) of the Berne Convention, which states:

‘The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information’ (www.wipo.int, accessed 6-6-2016).

In para 68 the court states: ‘Article 2(8) of the Convention appears to apply more widely than section 12(8) of the Act. Put differently, section 12(8) affords greater protection to original works. Whereas Article 2(8) would exempt all news of the day and miscellaneous facts having a certain character, section 12(8) exempts only certain news of the day.’

‘News of the day that are mere items of press information’ refers to works that have been reduced to material form. If the works are original, then s 12(8) applies; if they are not, s 2(1) applies and according to the court, either way, they are not entitled to copyright protection.

‘Items of press information’ that are exempted from copyright would include – but are not limited to – press statements and press interviews concerning ‘news of the day’, which journalists and anyone else would be free to use, in whole or part thereof without authorisation being required from anyone. Berger AJ then held: ‘Anyone who communicates information to the media intends that information to be put into the public domain. In my view, it is certainly in the public interest that the general public be easily aware of information communicated to the media that is either already in the public domain or soon will be. … In all these instances, the items of information were given to the media with full knowledge that the information would be put into the public domain. … In these two cases [Moneyweb 6 and 7], there was no expectation that the information would be given to the press and put into the public domain; they were therefore not items of press information’ (para 73 – 75).

The court found that s 12(8)(a) of the Act did not apply to Moneyweb 5, 6 and 7.

Substantiality 

The issue the court focussed on was whether Media24 reproduced any substantial part of the articles that were proved to be original works, namely, Moneyweb 5, 6 and 7.

The court referred to Galago Publishers (Pty) Ltd and Another v Erasmus 1989 (1) SA 276 (A), where a test was applied to determine whether there had been an infringement of copyright. Corbett JA (as he then was) stated: ‘[I]t is not necessary for a plaintiff in infringement proceedings to prove the reproduction of the whole work: It is sufficient if a substantial part of the work has been reproduced. … [I]n order for there to have been an infringement of the copyright in an original work it must be shown (i) that there is sufficient objective similarity between the alleged infringing work and the original work, or a substantial part thereof …; and (ii) that the original work was the source from which the alleged infringing work was derived, ie that there is a casual connection between the original work and the alleged infringing work’ (the courts emphasis) (at 280).

The court, in determining whether a substantial part of the work had been reproduced, had to make a judgment based on the work as a whole and focus on the quality of what had been taken rather than the quantity.

Below is a synopsis of each article:

  • ‘Amplats CEO cites JSE rules’ (Fin24 5) was published on 16 January 2013, the same day as Moneyweb 5. Seven hours separated the publication of the two articles. Much of the article is a word-for-word copy of Moneyweb 5. The court held: ‘Moneyweb 5 focuses on two main issues … . Both issues, the core of Moneyweb 5, have been reproduced in Fin24 5. Accordingly, Fin24 has indeed reproduced a substantial part of Moneyweb 5’ (at para 88).
  • The article ‘Defencex boss rallies support’ (Fin24 6) was published one day after Moneyweb 6 was published. According to the court, Fin24 took very little quantity from Moneyweb 6. In para 90 to 92, the court states: ‘The first three paragraphs, and two paragraphs towards the end, of Fin24 6, are also copied from Moneyweb 6. … It is correct, as Moneyweb says, that the headline and introductory paragraphs of an article are important to retain the readers’ interest in reading the article to completion. … Fin24 6 contains very little detail of the meeting and is barely descriptive. In my view, Fin24 has not reproduced a substantial part of Moneyweb 6.’
  • ‘Defencex boss opens up to Moneyweb’ (Fin24 7) was published more than three days after the Moneyweb 7 article. This article focusses on one of the issues covered in the interview, Fin24 copied certain extracts almost word-for-word and the extracts copied come from different parts of the discussion on Moneyweb 7. The court was of the view, that Fin24 had not reproduced a substantial part of Moneyweb 7.

Fair dealing

Section 12(1) of the Act states:

‘Copyright shall not be infringed by any fair dealing with a literary or musical work –

(c) for the purpose of reporting current events –

(i) in a newspaper, magazine or similar periodical; or

Provided that, in the case of paragraphs (b) and (c)(i), the source shall be mentioned, as well as the name of the author if it appears on the work.’

The court held: ‘The key provisions of section 12(1)(c)(i), for the purposes of this case, are that the dealing must be “fair”; the purpose must be to report “current events”; and the source, including the name of the author, must be “mentioned”’.

With regard to fair dealing, Berger AJ said that there did not appear to be any South African decision on the point. In para 113, Berger AJ stated: ‘In my view, the factors relevant to a consideration of fairness within the meaning of section 12(1)(c)(i) 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.’

Did Media24 prove that their publication of Fin24 5 constituted ‘fair dealing’? According to the court the fact that the article was of topical interest to its readers did not relieve Fin24 of its obligation to deal fairly with Moneyweb 5.

Berger AJ held: ‘Fin24 5 was published online within seven hours, and on the same news day as Moneyweb 5. Almost all of Fin24 5 is a word-for-word copy of Moneyweb 5. In my view, Fin24 5 has taken more than a substantial part: It has taken the core of Moneyweb 5. …  Even though Fin24 5 referred twice to Moneyweb, it seems that the article was likely to be substitute for Moneyweb 5. The provision of a hyperlink does not by itself discharge the burden of proving “fair dealing”. In my judgment, the respondents have not proved that their publication of Fin24 5 constitutes “fair dealing” within the meaning of section 12(1)(c)(i)’ (paras 129 – 131).

Unlawful competition

With regard to Moneyweb’s claim of unlawful competition, the court held that it could not succeed where a claim of copyright infringement had failed.

Order

The court ordered the following:

‘It is declared that the respondents’ publication of the article of 16 January 2013, entitled “Amplats: CEO cites JSE rules”, constituted infringement of the applicant’s copyright under the Copyright Act 98 of 1978;

It is declared that the respondents are liable to the applicant for the damages suffered by it as result of the unlawful publication of the said article;

The quantum of the damages to be paid, including the quantum of any additional damages payable pursuant to section 24(3) of the Copyright Act 98 of 1978, will stand over for determination in a damages enquiry;

For purposes of the damages enquiry, the applicant is to file a declaration particularising the damages claimed within 20 days of the date of this order and the respondents are to file a plea within 20 days thereafter;

The Rules of Court applicable to the exchange of pleadings and the process of discovery will apply in this regard;

The applicant is to pay 70% of the respondent’s costs of this application, including the costs of two counsel.’

 

 

Kathleen Kriel BTech (Journ) (TUT) is the production editor at De Rebus.

 

This article was first published in De Rebus in 2016 (July) DR 53.