Latest copyright judgment discussed at Press Club

July 1st, 2016
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From left: Press Club legal adviser and Rapport news editor, Herman Scholtz, intellectual property attorney from Adams and Adams and Afro-IP contributing blogger, Darren Olivier; and Press Club chairperson and freelance journalist, Tanya de Vente-Bijker during the discussion held on 17 May.

By Kathleen Kriel

The National Press Club held a discussion regarding the latest copyright judgment entitled ‘The possible implications for the future of journalism’. The discussion was held on 17 May at the Court Classique Hotel in Pretoria.

The discussion was on the Moneyweb (Pty) Ltd v Media 24 Ltd and Another (GJ) (unreported case no 31575/2013, 5-5-2016) (Berger AJ) case and included a panel of experts in the field, namely, Wits University professor and co-editor of the South African Law Journal, Professor Pamela Andanda; intellectual property attorney from Adams and Adams and Afro-IP contributing blogger, Darren Olivier; and Press Club legal adviser and Rapport news editor, Herman Scholtz.

Press Club chairperson and freelance journalist, Tanya de Vente-Bijker, welcomed delegates and asked each panellist to give their opinion about the case.

Prof Andanda who joined the discussion via Skype said that she had two preliminary observations that she came across, which was that the Moneyweb matter gave the court an opportunity to clarify issues in relation to online journalism and news articles, which at international level, had never been dealt with to such a great extent before. ‘The court had a difficult task of applying established corporate law principles to a very sensitive issue,’ she said.

Prof Andanda said the judgment was a well-balanced judgment from the court. She referred to s 12(8)(a) of the Copyright Act 98 of 1978, which refers to ‘mere items of press information’. Prof Andanda said the manner in which the court interpreted the ‘mere items of press information’ was quite clear and added what is protected is the journalist’s original way in covering that event and publishing that information. ‘You are taking building blocks and building something unique. However, it is a little bit tricky when you are talking about news and you have a number of journalists in the same space trying to express themselves built on the same factual events, so that is the difficult task that the court had to deal with,’ she said.

With regard to the evidence, Prof Andanda said that establishing originality is a task that entails looking at the relevant considerations and making a value judgment. Prof Andanda further stated: ‘When you have to make a value judgment based on relevant facts and information that is placed before you in evidence that is what becomes very tricky. … You can see that out of the seven articles [with regard to the originality], Moneyweb articles one to four, the court was unable to establish the nature and extent of the author’s contribution. … It moves from, what was expressed at the event to what is creatively expressed by the authors.’ Prof Andanda added that the court found the three other articles (Moneyweb five to seven) to be original, because the evidence before it was clear and extensive.

Prof Andanda added that she had concerns with regard to Moneyweb article six. ‘The court was of the view that it was not very clear with the recording of the interview that was transcribed and that speaks to the extent of the contribution of the author of that article. In my view, that pushes this particular article closer to the first four articles. … If the court – in this particular case article six  – could say that … looking at the structure of this article and at the way it is constructed, the court is able to determine that it is original, then why could the court not do the same in the first four articles? I was a little bit concerned with the inconsistent manner in which the evidence was treated.’

Prof Andanda said the court thoroughly established substantial copying saying that this was a well-established principle. She added that the court came to the conclusion that the most substantial copying came from Moneyweb article six. ‘It was a matter of quality not quantity. Of course quality is what determined the court’s decision, that only the sixth article had elements of substantial reproduction, but the other two, there were elements of copying, but the court determined that it was not substantial to warrant a finding of infringement,’ Prof Andanda said.

Further in her discussion, Prof Andanda said she was concerned with the current Amendment Bill to the Act (the Copyright Amendment Bill 2015), which includes the American concept of fair use, as it would be in direct conflict with the current s 12. ‘It does not affect the judgment that we are discussing, but I think we have to apply our minds and really contribute to the on-going debates in the drafting of the new Bill,’ she said.

According to Prof Andanda, the court clearly considered s 12(1) and noted that the test for fair dealing was an objective one and supplied this in an objective manner limited to the fact that the time of dealing, which was very helpful. ‘Because if you look at the international trend, especially the American jurisprudence, the South African consistency in applying their fair use test, I think our courts have made a breakthrough in applying the test for fair dealing in a very clear and consistent manner by indicating that first of all you need to apply this once you have determined that there is an issue of originality and at the same time, much as hyperlink was thought to be sufficient, it does not stop there. The court issued a very useful caution telling us that the proficient for the hyperlink itself, is not method in fair dealing,’ she said.

Mr Olivier said that he wanted to discuss two aspects. ‘One, is that I work every day with enforcing copyright and trade mark law, so what is the judge saying? He is saying that I have to spend more time showing the court that there is copyright in the articles, which raises the costs of litigation quite substantially. There is no registration process for copyright as there is for trade marks. … In one sense I have a problem with that,’ he said.

Mr Olivier said that as a blogger, there are times when one aggregates a news story, to compile it in a way that it can be read. ‘You can take general information that is available, a press release for example, adjust that press release so you know that your readers are going to read it. Give it a title … put someone’s picture on it before you can publish it. To me that deserves protection. It deserves, I think, recognition by a judge that some time and effort has gone into that. … It should meet the threshold of originality,’ he said.

Mr Olivier said that the idea behind copyright is to protect and nurture creativity, which includes journalism. He said it falls short in many instances of journalism as it is very expensive to litigate. ‘It takes two big media houses to take something to court. We love this judgment because it is 65 pages of material you do not get to see day-to-day,’ he said.

Mr Olivier said this judgment endorses the need for writer’s to keep a diary or timesheet as to what they do on a daily basis as evidence of the work that went into that article and for writer’s to enforce their copyright quickly and more cost effectively. Mr Olivier added that it would be necessary for players in the industry to get together and work out a practical way on what is regarded as acceptable and to monitor and be made aware of what is being published.

Mr Scholtz gave his view on the matter as legal representative of the Press Club. He said that there was no winner in this case, but that was beside the point. ‘IP law is a blunt instrument that stuck with me when I read this judgment. It does not really appreciate journalistic practice as we think about it. … If we look at the ambit of items of press information and if we look at the examples that the court decided to view as articles not being original, as professor Andanda pointed out, it was purely evidential thing. It was just that Moneyweb did not go through all the hoops to prove it,’ he said.

Mr Scholtz added that the definition laid down by the court of items of mere press information, was extremely wide on what the court feels in that regard. ‘Should the article be original, we accept that it is not items of mere press information; it may be items of press information, but not mere press information. So, if your article is original, it will be protected. … But I do think it is a very wide definition, which does not take into account of what we do on a daily basis,’ Mr Scholtz said.

In his view, Mr Scholtz said he did not think that this case opened the floodgate of court cases and he was not sure if the parties were planning on an appeal. He did add that after the judgment many commentators and editors felt that the sky was falling with this decision. ‘Because nobody is going to invest in journalism; nobody is going to do the work because everybody can just copy from one another. … They feel it is going to clamp down on the creativity in the industry. But I tend to disagree. I think the entire business model in the media is being disrupted and we disrupt it ourselves. We take Facebook pictures from victims, where there is also copyright, we take those pictures, we take some of the content from the internet from private individuals and incorporate that into our articles. The whole industry is being disrupted … but in ten years time, this is not going to be an important conversation. … This is not a matter that the courts are going to clarify for us, but it is a matter of ethics. … We should instil some honour in the process and keep it out of the courts,’ he said.

 

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

This article was first published in De Rebus in 2016 (July) DR 12.