Moneyweb, a provider of an online news publication, brought an application in 2013 against a competitor, Media 24, before the Local Division of the Gauteng High Court in Johannesburg, based on copyright infringement. Moneyweb’s complaint was that seven articles published on its website were substantially copied and published on Media24’s financial news website, Fin24.
The Court issued a decision on 5 May 2016 declaring that Media24 had infringed the copyright in only one of the seven articles in which Moneyweb (Pty) claimed copyright.
In deciding the matter, the Court primarily had to consider three issues, namely:
- whether copyright subsisted in Moneyweb’s articles as original literary works;
- if so, whether Media24 had reproduced “a substantial part of the relevant article[s]” thereby infringing Moneyweb’s copyright; and
- whether certain defences under the Copyright Act were available to Media24.
In order for copyright to subsist in the articles, Moneyweb was required to prove that the articles were original. Originality in this context does not require creativity but rather that the articles were created as a result of the author’s own skill, judgment or labour and not slavishly copied from existing material. The Court examined the circumstances surrounding the creation of each article separately and found that Moneyweb had failed to prove originality in the creation of four of the articles. Three of the articles, however, were found to be original.
Media24’s first defence was raised in terms of Section 12(8)(a) of the Copyright Act, which provides that no copyright shall subsist in “news of the day that are mere items of press information”. The Court rejected its defence on the basis that, since the three articles were found to be original, they could not be classified as “mere items of press information”.
The court then had to decide whether the portions of the articles that had been copied were substantial and accepted that the correct test involved an assessment of the quality or importance of the copied content and not simply the quantity of the copied text. The Court found that Media24 had only reproduced a substantial part of one of Moneyweb’s articles. The article in question was more or less a verbatim copy of Moneyweb’s article and the Court found that Media24 had “taken more than a substantial part; it had taken the core” of the article. The publication of Media24’s article, therefore, was found to have infringed Moneyweb’s copyright. In connection with the other two articles, the Court found that the content that had been copied was not substantial (in quality or quantity) and, therefore, that the publication of the articles did not infringe Moneyweb’s copyright.
The second defence raised by Media24 was that its conduct constituted “fair dealing” within the meaning of Section 12(1)(c)(i) of the Copyright Act. This provision states that copyright shall not be infringed by any fair dealing with literary works for the purposes of reporting current events provided that the source shall be mentioned as well as the name of the author, if it appears on the work.
Although the Court found that Media24 had complied with the requirement to name the source and author by providing a hyperlink to the original article, it rejected the defence on the basis that Media24 could not prove that its near-verbatim copy of Moneyweb’s article was fair.
Despite succeeding with one of its claims, the Court ordered Moneyweb to pay 70% of Media24’s legal costs since the latter had been “substantially successful in defending the claims”.
The second leg of the case will decide Media24’s liability for damages arising from its infringement of the article concerned.
by Kareema Shaik | Senior Associate