Copying– where do you draw the line?

The play-off between Moneyweb and Fin24 in the Gauteng Local Division, Johannesburg last month has caused a furore in the media and IP community. It is expected that the outcome of this case will have far-reaching implications for the practice of online content news aggregation.

The wrangle between the two media giants started over a year ago when Moneyweb launched legal proceedings against Fin24 for alleged plagiarism, copyright infringement and unfair competition. The case concerns a series of articles written by Moneyweb journalists and contributors, which it claims Fin24 copied, either fully or partially, and published unlawfully¹ .

So much of the web is built around aggregation - gathering together interesting and useful things from around the internet and presenting them in new ways to an audience² . The digital environment has made it easier and faster to copy copyrighted works. The ease of copying has provided users with the ability to modify and distribute copyrighted material with speed and ease. A story is placed on the internet and within seconds it can be copied and distributed.

News aggregators, such as Google News, Huffington Post, Pulse, Flipboard and Meltwater, gather and consolidate information from multiple sources to display it on a single site. News aggregation typically includes a hyperlinked headline, a citation to the original source and brief description of content. Online aggregators argue that their practice is protected by copyright law because they only display small extracts of information which is often factual. As you may have already gathered, “aggregation” in its purest form is somewhat distinct from what Fin24 is alleged to have done.

In terms of the Copyright Act, 1978, content can be protected if it is an original work of authorship, and is fixed in a tangible medium of expression that can be read directly or with the aid of a machine or device. Originality does not however postulate inventiveness, but merely requires that the work in question should be the result of the author’s skill, judgment and labour. What is more, provided that sufficient skill and labour have been expended resulting in a new work, copyright can vest in a subsequent work notwithstanding that the subsequent work was copied from an earlier work.

It is however important that issues of originality should not be confused with those of infringement. Whilst a subsequent work copied from a prior work may be original, it nonetheless is an infringement of the earlier work. In fact section 2(3) of the Copyright Act provides that, “a work shall not be ineligible for copyright by reason only that the making of the work involved infringement of copyright in some other work”.

So, what does all this mean in the Moneyweb v Fin24 saga? Well, in its defence to Moneyweb’s claims, Fin24 argues that, whilst there may have been copying, the copying was not substantial and, as such, there was no infringement. In addition, Fin24 alleges that the articles that Moneyweb claims were infringed were themselves sourced from external third parties and are therefore not original as required by the Copyright Act, 1978. Fin24 further contends that its actions are exempted under the fair dealing provisions in the Copyright Act.

I foresee some problems with these arguments. The test of originality has no bearing on whether the material used in creating the work is sourced or not. Additionally, the threshold of originality required by the Copyright Act is a low one, such that even an arrangement of materials, the layout of a form or a compilation of codes³ can attract copyright protection. Thirdly, infringement of copyright does not require the copying of the entire work and “fair dealing” requires that the copying should not be prejudicial to the owner of the copyright. In this instance, Moneyweb contends that Fin24’s copying is prejudicial to its rights in that readers, who would otherwise have read Moneyweb’s articles, would not do so after having read Fin24’s articles.

It will be interesting to see how the court will deal with the question of fair dealing, especially since the Copyright Act is rather vague on this issue. It is likely that the court will look to foreign law for guidance. The approach set out in the United States Copyright Act, provides valuable assistance in the interpretation of fair dealing or fair use as provided for in that Act. It lists the following as factors to be considered in determining whether the use made of a work in any particular case is fair:

• Whether the purpose and character of the use is of commercial or non-commercial nature;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyright work as a whole; and
• The effect of the use upon the market or value of the copyright work.

One can only hope that the outcome of this case will bring much needed guidelines on the issue of fair dealing and content aggregation in South Africa.