Close Menu
TechCentralTechCentral

    Subscribe to the newsletter

    Get the best South African technology news and analysis delivered to your e-mail inbox every morning.

    Facebook X (Twitter) YouTube LinkedIn
    WhatsApp Facebook X (Twitter) LinkedIn YouTube
    TechCentralTechCentral
    • News

      Blue Label Telecoms to change its name as restructuring gathers pace

      11 July 2025

      Get your ID delivered like pizza – home affairs’ latest digital shake-up

      11 July 2025

      EFF vows to stop Starlink from launching in South Africa

      11 July 2025

      Apple plans product blitz to reignite growth

      11 July 2025

      Nissan doubles down on South Africa despite plant uncertainty

      11 July 2025
    • World

      Grok 4 arrives with bold claims and fresh controversy

      10 July 2025

      Bitcoin pushes higher into record territory

      10 July 2025

      Cupertino vs Brussels: Apple challenges Big Tech crackdown

      7 July 2025

      Grammarly acquires e-mail start-up Superhuman

      1 July 2025

      Apple considers ditching its own AI in Siri overhaul

      1 July 2025
    • In-depth

      Siemens is battling Big Tech for AI supremacy in factories

      24 June 2025

      The algorithm will sing now: why musicians should be worried about AI

      20 June 2025

      Meta bets $72-billion on AI – and investors love it

      17 June 2025

      MultiChoice may unbundle SuperSport from DStv

      12 June 2025

      Grok promised bias-free chat. Then came the edits

      2 June 2025
    • TCS

      TCS+ | MVNX on the opportunities in South Africa’s booming MVNO market

      11 July 2025

      TCS | Connecting Saffas – Renier Lombard on The Lekker Network

      7 July 2025

      TechCentral Nexus S0E4: Takealot’s big Post Office jobs plan

      4 July 2025

      TCS | Tech, townships and tenacity: Spar’s plan to win with Spar2U

      3 July 2025

      TCS+ | First Distribution on the latest and greatest cloud technologies

      27 June 2025
    • Opinion

      In defence of equity alternatives for BEE

      30 June 2025

      E-commerce in ICT distribution: enabler or disruptor?

      30 June 2025

      South Africa pioneered drone laws a decade ago – now it must catch up

      17 June 2025

      AI and the future of ICT distribution

      16 June 2025

      Singapore soared – why can’t we? Lessons South Africa refuses to learn

      13 June 2025
    • Company Hubs
      • Africa Data Centres
      • AfriGIS
      • Altron Digital Business
      • Altron Document Solutions
      • Altron Group
      • Arctic Wolf
      • AvertITD
      • Braintree
      • CallMiner
      • CambriLearn
      • CYBER1 Solutions
      • Digicloud Africa
      • Digimune
      • Domains.co.za
      • ESET
      • Euphoria Telecom
      • Incredible Business
      • iONLINE
      • Iris Network Systems
      • LSD Open
      • NEC XON
      • Network Platforms
      • Next DLP
      • Ovations
      • Paracon
      • Paratus
      • Q-KON
      • SevenC
      • SkyWire
      • Solid8 Technologies
      • Telit Cinterion
      • Tenable
      • Vertiv
      • Videri Digital
      • Wipro
      • Workday
    • Sections
      • AI and machine learning
      • Banking
      • Broadcasting and Media
      • Cloud services
      • Contact centres and CX
      • Cryptocurrencies
      • Education and skills
      • Electronics and hardware
      • Energy and sustainability
      • Enterprise software
      • Fintech
      • Information security
      • Internet and connectivity
      • Internet of Things
      • Investment
      • IT services
      • Lifestyle
      • Motoring
      • Public sector
      • Retail and e-commerce
      • Science
      • SMEs and start-ups
      • Social media
      • Talent and leadership
      • Telecoms
    • Events
    • Advertise
    TechCentralTechCentral
    Home » Opinion » Lessons from Moneyweb vs Fin24

    Lessons from Moneyweb vs Fin24

    By Vicky Stilwell10 May 2016
    Twitter LinkedIn Facebook WhatsApp Email Telegram Copy Link
    News Alerts
    WhatsApp

    vicky-stilwell-180Despite the fact that South Africa’s Copyright Act was promulgated nearly 40 years ago, there are relatively few instances in which South African courts have been called upon to interpret the provisions of the act. Judgment in the recent Moneyweb vs Media24 case in the high court was therefore eagerly anticipated by both players in the media industry and those with an interest in intellectual property.

    In this case, Moneyweb sought (among other things) a declaration that the publication of seven articles by Media24, under its Fin24 banner, was unlawful in that the publication constituted infringement of its copyright.

    Although the judgment does not really break new ground in copyright law, it contains some important developments and affirms some important principles in the field of copyright.

    First off, the court confirmed that there is no copyright in the concept of a news story. Copyright subsists in the particular material expressions or forms of the story – that is, the articles written or features produced around the story.

    Next, the court dealt with the issue of originality. The Copyright Act states that in order to qualify for copyright protection, a work must be original. The court reaffirmed the existing principles in this regard, stating that for a work to be “original” there must have been sufficient application of the author’s mind. The work cannot be a mere slavish copy of the original.

    The court also dealt with the issue of determining whether something constitutes a reproduction of a substantial part of an existing work and confirmed that the assessment is a qualitative rather than a quantitative one. What is interesting here is that the court referred briefly, towards the end of the judgment in relation to the applicant’s contention that Fin24’s conduct amounted to unlawful competition, to Fin24’s “aggregation guidelines” (which, presumably, form part of certain internal guidelines applicable to journalists), the first of which is: “Never use more than 30% of the original source.”

    There is a common misconception amongst members of the public and the media that if a person uses or reproduces less than a certain percentage of an existing work such use or reproduction does not amount to copyright infringement. It is important to reiterate that there is no hard and fast rule in this regard. It is possible that copying a quantitatively small part of an existing work could constitute infringement if the part copied is, for example, the heart of the original work.

    The court dealt with section 12(8)(a) of the Copyright Act, which states that copyright will not subsist in (among other things) news of the day that are mere items of press information. This appears to be the first judgment in South Africa to actually deal with this provision. The court was careful to point out that the principle is not applicable to all news of the day, but only to mere items of press information. It went on to say that the exclusion will apply to works such as press releases and press interviews that are intended to be used and disseminated by the media and in these case such works are free to be used and reproduced by anyone.

    Lastly, the court dealt in some detail with the concept of “fair dealing”, which is a defence against infringement in terms of the Copyright Act. The concept of fair dealing is not a new one. However, the courts have been reluctant to lay down a formal test regarding the assessment of fairness.

    In this case, the court referred to foreign principles and decided cases applicable to the concept but was careful to point out that foreign jurisprudence cannot merely be transplanted into South African law.

    gavel-640

    The court stated that fair dealing is an elastic concept and that the determination involves a value judgment and will depend on the particular facts and circumstances at the time of dealing. Section 12(1)(c)(i) of the sct states that “copyright shall not be infringed by any fair dealing with a literary or musical work … for the purpose of reporting current events in a newspaper, magazine or similar periodical … provided that the source shall be mentioned as well as the name of the author if it appears on the work”.

    An important development in this case is that the court laid down several factors that should be taken into account in determining fairness within the meaning of section 12(1)(c)(i), including:

    • 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 original work that has been taken;
    • The extent of the acknowledgment given to the original work.

    Although the court emphasised that this list of factors is not exhaustive and that each will be given a varying amount of weight depending on the circumstances, these factors will no doubt be used as a basis for assessing the question of fairness in future.

    As mentioned, in terms of the Copyright Act, the fair dealing defence contains a proviso that states that the source of the work shall be mentioned, as well as the name of the author if it appears on the work.

    Another important point that is useful in the context of digital media and publishing is that in this case Fin24 had made use of hyperlinks in several of the articles in question and, although this was not an issue under contention between the parties, the court held that a hyperlink substantially complies with the requirement that “the source shall be mentioned, as well as the name of the author if it appears on the work”.

    Although many of the issues decided by the court in this case confirmed existing principles of copyright law in South Africa, the judgment provides welcome and much needed guidance on the interpretation of the law relating to the exclusion of items of current news from copyright protection and the application of the principles relating to fair dealing in the context of reporting current events.

    • Vicky Stilwell is trademark attorney and consultant, Kisch IP


    Fin24 Kisch IP Media24 Moneyweb Vicky Stilwell
    Subscribe to TechCentral Subscribe to TechCentral
    Share. Facebook Twitter LinkedIn WhatsApp Telegram Email Copy Link
    Previous ArticleDrones to deliver medical supplies in Rwanda
    Next Article R1,5bn to boost SMEs

    Related Posts

    CompCom media inquiry report delayed once again

    19 December 2024

    Koos Bekker says death of newspapers is inevitable

    28 July 2024

    Google voices support for SA news media amid plan for Big Tech fund

    20 June 2024
    Company News

    $125-trillion traded: Binance redefines global finance in just eight years

    11 July 2025

    NEC XON welcomes HPE acquisition of Juniper Networks

    11 July 2025

    LTE Cat 1 vs Cat 1 bis – what’s the difference?

    11 July 2025
    Opinion

    In defence of equity alternatives for BEE

    30 June 2025

    E-commerce in ICT distribution: enabler or disruptor?

    30 June 2025

    South Africa pioneered drone laws a decade ago – now it must catch up

    17 June 2025

    Subscribe to Updates

    Get the best South African technology news and analysis delivered to your e-mail inbox every morning.

    © 2009 - 2025 NewsCentral Media

    Type above and press Enter to search. Press Esc to cancel.