IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

Case No: 13/31575

In the matter between: MONEYWEB (PTY) LIMITED Applicant and MEDIA24 LIMITED First Respondent FADIA SALIE Second Respondent

RESPONDENTS HEADS OF ARGUMENT

INTRODUCTION AND APPROACH 1. The applicant seeks declaratory orders against the first respondent and the second

respondent for alleged copyright infringement and/or unlawful competition in respect of

seven, increased to eight,1 news articles published by the first respondents on-line

financial website (Fin24) of which the second respondent is the editor. For convenience,

we refer to the applicant as Moneyweb and to the first and second respondents together

as Fin24.

1 An amendment to the notice of motion, to add an additional news article, was effected after the replying

papers were delivered.

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2. The applicant also seeks the removal of the articles in question from Fin24s website, as

well as a damages inquiry at proceedings it intends instituting in due course should its

declaratory orders succeed.

3. At the outset, we point out that the commencement of the preparation of these heads of

argument was on 5 January 2015 some six weeks before the receipt of Moneywebs

heads of argument. The directive by the deputy Judge President demanded a filing by

Fin24 within the space of a single week. In this single week, it has been simply impossible

to deal point-for-point with every issue and argument raised by Moneyweb. We say,

however, that most of them have been dealt with holistically as far as possible but any

failure to address any specific issues or arguments in these heads should not be construed

as an acceptance of the argument, which will be rebutted in oral argument at the hearing.

4. In these heads of argument, we shall develop Fin24s argument in terms of the following

scheme:

4.1. First, in Part A, we summarise its defences in broad and essential terms to

contextualise our submissions which follow.

4.2. Second, in Part B, the relevant legal principles applicable to each defence are set

forth, together with reference to appropriate and instructive foreign jurisprudence.

4.3. Third, in Part C, we analyse the articles in issue in light of the applicable copyright

legal principles, and the case brought against the respondents generally in light of

the applicable principles of unlawful competition.

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4.4. Finally, in Part D, we conclude with the form of order sought, together with a brief

summary of the reasons relied upon by the respondents.

5. Before commencing with a summary of Fin24s defences, it is opportune to make some

submissions on what this application is not about.

5.1. First, much is made in Moneywebs papers (and in its heads of argument) of its

allegations that Fin24 is in breach of various professional codes applicable to the

media and journalists, concerning how those codes consider journalism should be

done. These are entirely irrelevant. This is an application about alleged copyright

infringement in respect of the press articles in issue which if proved, so Moneywebs

contention runs, entitle it not only to a declaration of copyright infringement but

also to a declaration of unlawful competition against Fin24. As such, the only inquiry

is whether there is actionable copyright infringement and unlawful competition, and

that falls to be determined with reference to the relevant provisions of the Copyright

Act 98 of 1978 (the Act) and the common law of unlawful competition, not to any

notions of allegedly proper journalistic practice (which is all inadmissible hearsay

evidence, in any event, for the reason that no confirmatory affidavits have been filed

on behalf of the professional codes concerned). The personal (or professional) views

of editors of other publications are likewise irrelevant: Fin24 is not facing a

disciplinary hearing for alleged breach of codes on journalistic practice. Moreover,

the editors views do not confirm that Fin24 in any of the articles in issue sourced

from Moneyweb (as opposed to other sources) up to anywhere near the threshold of

30%.

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5.2. Second, flowing from the first, this is not an application directed at the validity (or

otherwise) of Fin24s so-called aggregation guidelines or its editorial policy

generally. This is an application which concerns at most eight discrete press articles.

It is not enough for Moneyweb to point to Fin24s aggregation guidelines or

editorial policy and then, based on these, to contend that because in Moneywebs

estimation these are flawed, Fin24 must have committed copyright infringement in

respect of the articles in issue or otherwise on some basis be competing unlawfully

with Moneyweb. It is for Moneyweb to establish originality, to establish

infringement by Fin24 and to demonstrate that the infringement is substantial and

to do all these things in respect of each of the articles in issue. We return to this,

and to the issue of onus, at the appropriate place below.

A. FIN24s DEFENCES: SUMMARISED

6. Fin24s defences are summarised in paragraph 5 of its answering affidavit.2

7. With reference to these, Fin24s defences are the following:

7.1. First, each of Moneywebs articles in issue are themselves sourced from external

third parties and Fin24 has sourced only a part of its own articles from Moneyweb. It

follows from this that it was incumbent upon Moneyweb to demonstrate three

things: first, the parts of its article in each case which are allegedly original; second,

that those parts are qualitatively substantial to each article in issue; and third, that

Fin24 reproduced those parts in its corresponding article. Mindful that each of 2 Record pp.263-266.

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Moneywebs articles in issue is a news item of some kind itself derived from an

external source (over which Moneyweb cannot claim originality without more), the

first of the three things which Moneyweb was required to demonstrate is

particularly significant to these proceedings.

7.2. Second, related to the first, as the law of copyright is a technical subject, it was

incumbent upon Moneyweb both to make the necessary allegations and to establish

these with the required evidence.

7.3. Third, the above notwithstanding, should the original portions of each Moneyweb

article in issue be on some basis identifiable and identified (which is denied), the

original portions sourced from Moneyweb by Fin24 in each case are neither

quantitatively nor qualitatively significant enough (especially and notably the latter)

to found infringement: Fin24s articles would not be qualitatively reduced (and their

meaning thus impaired) were the portions sourced from Moneyweb removed.

7.4. Fourth, the above notwithstanding, should the relevant parts of Moneywebs articles

in issue be found to be original and the corresponding Fin24 article be found to be a

substantial qualitative copy, the Act provides for exceptions from copyright

protection of such literary works, in sections 12(1)(c)(i) and 12(8)(a). We return to

these exceptions further below: we shall show that Fin24 has met the provisions of

fair dealing in its use of Moneywebs first articles on each subject (section

12(1)(c)(i)), that each article is fundamentally an article published in a newspaper or

periodical on [a] current economic, political or topic and that some of

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Moneywebs articles consist of news of the day that are mere items of press

information (section 12(8)(a)).

7.5. Fifth, any alleged plagiarism, apart from being denied by Fin24, is not a cause of

action and, relatedly, neither is conduct not prohibited by the law of copyright a

form of unlawful competition on some residual, catch-all basis. The cases relied

upon by Moneyweb to the contrary are wholly distinguishable on the facts: there is

no basis on the facts before this Court to uphold an extension of the delictual action

of unlawful competition in this matter.

8. It follows from the above summary that Moneyweb has omitted a primary issue for

determination identified in paragraph 11 of its heads of argument: interposed between

the two primary issues it provides, is the issue as to whether (if Moneyweb succeeds in

establishing originality) Fin24 has indeed copied or adapted an original part and further, if

so, whether any such copying was substantial. This omission is surprising on Moneywebs

part, for it accepts in paragraph 31 of its heads of argument that substantiality is a

requirement in terms of section 1(2A) of the Act and in paragraph 35 of its heads of

argument that reproduction of a substantial part is one of the questions before this

Court. The fact that Moneyweb contends (in paragraph 9 of its heads of argument) that

Fin24 has copied Moneywebs news story [which] is not therefore in dispute does not

answer this issue on which it bears the onus: mere copying by reproduction on its own

does not meet the test for infringement the copying must also be substantial and that

inquiry falls to be determined in terms of whether the copying occurred in respect of an

original part. We therefore specifically submit that the contention in paragraph 32 of

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Moneywebs heads of argument that [Moneyweb] assumes that the question of an

infringing act is not in dispute is not a justified assumption: the substantiality requirement

in terms of section 1(2A) is very much in dispute. We return to the substantiality

requirement further below.

9. Before setting forth the relevant legal principles, we interpose the following considerations

which have a substantive effect in this matter:

9.1. First, in paragraph 2 of the notice of motion, Moneyweb seeks an interdict against

Fin24 from continuing to publish the offending articles and are directed to remove

the articles [from Fins24s website]. Moneyweb justifies seeking this order,

according to its heads of argument, on the basis that the infringement is ongoing as

the articles concerned continue to be accessible on the Fin24 website (para 2). This

relief sought loses sight of the fact that reproduction (in the form alleged of copying)

is not an on-going act: it is a discrete act, namely the act of reproduction by copying.

Publication, however, is only an infringement if the work was hitherto

unpublished.3 There is no such allegation made by Moneyweb in this case. The

alleged infringement (in this case in the form of copying) if any be shown occurred a

long time ago. Although third parties may be accessing the allegedly-infringing

works (using them, in other words) there is no on-going reproduction, which is the

sole issue for present purposes. As it is trite that an interdict is not a competent

3 Section 6(b) of the Act.

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remedy to right historical wrongs,4 the interdict sought in paragraph 2 is

incompetent for this reason.

9.2. Second, the mere fact that Fin24 may bear the onus to establish its statutory

defences, does not dislodge the application of the so-called Plascon-Evans test

applicable to the resolution of disputes of fact on motion: irrespective that the onus

may be on Fin24 on any defence it raises based on Section 12 of the Act, the rule in

Plascon-Evans still applies.5

B. RELEVANT LEGAL PRINCIPLES

10. Original literary works (which include tables or compilations) are eligible for copyright

protection in terms of section 2(1)(a) of the Act. There is, however, no definition of

original or originality in the Act. The SCA appears to have accepted the definition of

original (even though it was not necessary for the purpose of the case before it to decide

whether the works in question were original) as:6

(A)n original work must be the product of an author's exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be original and covered by copyright, creativity is not required to make a work 'original.

4 Stauffer Chemicals Chemical Products Division of Chesebrough Ponds (Pty) Ltd v Monsanto Company 1988

(1) SA 805 (T) at 809F; Philip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another 1991 (2) SA 720 (A).

5 Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A); Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA) at paras [39] and [40]; Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C-263D.

6 CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 at para 25, quoted and accepted in Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) at [35]-[37].

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11. The recognition by the SCA in Haupt (above) of skill and judgment as the yardstick for

originality removes consideration of the sweat of the brow approach,7 for to elevate the

latter above the former would result in the author being overcompensated for his or her

work: for the author merely to show industriousness is not enough.8 The primary object of

copyright is thus not to reward the labour of others.9 Copyright protects originality not of

thought itself, but the expression of thought.10 Or, in different terms, copyright law

protects foxes better than hedgehogs.11

12. There is a reason why pure industriousness or sweat of the brow is not (or at least no

longer) the test for originality. There is a public interest in the production and

dissemination of intellectual creations, which is a public goal independent of recognising

and rewarding creative authors.12 This is not to say that actual time and effort expended

by the author is of no consideration (it remains a material factor to consider): While it is

true that the actual time and effort expended by the author is a material factor to consider

in determining originality, it remains a value judgment whether that time and effort

produces something original (our underlining).13

7 Jettisoned in CCH Canadian Ltd (above) at para [24], as accepted in Haupt. 8 CCH Canadian Ltd (above) at para [23]. 9 Feist Publications Inc v Rural Telephone Service (US Supreme Court) 499 U.S. 340 (1991) at 349-350. 10 University of London Press Ltd v University Tutorial Press Ltd (Chancery Division) [1916] 2 Ch 601 at 608-

609. See, too, Kalamazoo Division (Pty) Ltd v Gay [1978] 2 All SA 488 (C) 11 Designers Guild v Russell Williams [2001] 1 All ER 700 (HL) at 706. 12 Thberge v. Galerie dArt du Petit Champlain (Supreme Court of Canada) [2002] 2 SCR 336; 2002 SCC 34 at

paras [31]-[32]. 13 Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (SCA) at 649I.

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13. The amount of skill and labour (or judgment) required to render a work original is a matter

of degree: it depends upon the facts of each case.14 Applied to the present matter, the

amount of professional skill and labour expended on the creation of an article in issue as

borne out by the facts is determinative of not only whether the work is original, but in

which part(s) the qualitative essence of the factual literary work lies.

14. Copyright is a technical subject:15 originality is not presumed and must be shown to exist by

any applicant alleging subsistence of copyright.16 Facts must be placed before the court17

demonstrating the work in question as the product of the authors skill and judgment18

such that the legal conclusion that the work is original may be drawn: it is a matter of

degree.19 In particular, [w]here a work embodies existing subject matter the court must

decide whether its author has expended sufficient independent skill and labour to justify a

claim that the work is original. . Since novelty is not a requirement this test is essentially

a subjective one and goes to how the author went about creating his work albeit that it may

be similar to other works.20 It is therefore incumbent upon an applicant to show what

portions of the work are original and which are not21 all the more so, we submit, in

14 National Soccer League v Gidani [2014] 2 All SA 461 (GJ) at para [61]; Kalamazoo Division (Pty) Ltd (above)

at 494. 15 Memory Institute SA CC t/a SA Memory Institute v Hansen and Others 2004 (2) SA 630 (SCA) at para [5];

Payen Components SA Ltd v Bovic CC and Others 1995 (4) SA 441 (A) at 450F-G; Paramount Pictures Corporation v Video Parktown North (Pty) Ltd 1983 (2) SA 251 (T) at 259H-260D.

16 Haupt t/a Soft Copy (above) at paras [35]-[36]. 17 Video Rent (Pty) Ltd and Another v Flamingo Film Hire 1981 (3) SA 42 (C) at 46F-H; Vagar (t/a Rajshree

Release) v Transavalon (Pty) Ltd (t/a Avalon Cinema) 1977 (3) SA 766 (W) at 775C. See generally OH Dean Handbook of South African Copyright Law 11.1.2.

18 Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A) at 25D-I. 19 Sure Travel Ltd v Excel Travel (Pty) Ltd and Others 2004 BIP 275 (W); Kalamazoo Division (Pty) Ltd v Gay

[1978] 2 All SA 488 (C). See, too, the House of Lords decision in Cramp & Sons Ltd v Frank Smythson Ltd [1944] AC 329 at 340, where Lord Porter held that [w]hether enough work, labour and skill is involved, and what its value is, must always be a question of degree.

20 OH Dean op cit 1-22. 21 Pyromet (Pty) Ltd v Bateman Project Holdings Ltd [1998] 699 JOC (W) at 702-703.

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instances of news reports which, by their nature, contain mainly information of a public

nature.

15. It follows that that it is not enough, for the conclusion of originality to be drawn, simply for

the applicant to have the author testify that in his or her opinion the work is original and

required independent effort, skill and expertise to write: the author must state the

necessary facts sufficient to demonstrate that the work in question is indeed the product of

the authors skill and judgment. So, too, should the author identify especially in cases of

news reports which parts are his or her own, and which parts are words, phrases, ideas,

facts and opinions of others.

16. Copyright is infringed by anybody who, not being the owner or not holding a licence from

the owner, does or causes another to do in the Republic any of the acts restricted to the

owner (section 23(1)). The acts restricted to the owner are those listed, in regard to

literary works, in section 6, the essential restricted acts for present purposes being

reproducing the work in any manner or form (sub-section (a)).

17. There is a fundamental difference between use and reproduction:22 the former is not

an infringement of copyright, whereas the latter two are. The distinction is well-illustrated

by the learned authors of Copyright at 7-51:23

22 In these circumstances, we submit that the interdict sought in paragraph 2 of the notice of motion is

misplaced: copyright protection is alleged by Moneyweb not on the basis of unauthorized publication but instead on the basis of unauthorized copying or adapting.

23 Copinger and Skone James Copyright 16th ed 2011. See, too, Board of Healthcare Funders v Discovery Medical Scheme and Others (unreported judgment of the North Gauteng High Court dated 15 November 2012 under case number 35769/2010 per Kollapen J) at [39].

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A person may therefore use a work such as a directory to contact the listed names as many times as he wishes. If, however, in the course of doing so or afterwards he writes down or makes some other record of the substantial amount of the information obtained from the plaintiffs work, then he is liable to infringe. (our underlining)

18. The test for copyright infringement has been stated thus:24

it 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. To 'reproduce' within the meaning of the Act means to copy and in 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, for the former to be properly described, not necessarily as identical with, but as a reproduction or copy of the latter; and (ii) that the original work was the source from which the alleged infringing work was derived, ie that there is a causal connection between the original work and the alleged infringing work, the question to be asked being: has the defendant copied the plaintiff's work, or is it an independent work of his own? (See Francis Day & Hunter Ltd and Another v Bron and Another [1963] Ch 587 at 618, 623, indirectly referred to with approval by this Court in the unreported case of Topka v Ehrenberg Engineering (Pty) Ltd 30 May 1983).

19. Reproduction (by which is meant copying) for the purposes of section 23 is satisfied

whenever there has been a substantial copying of the work in question.25 And by

substantial is meant that

quality not quantity takes the test. It has repeatedly been held that substantial in this connection relates much more to the quality of what has been taken than to the quantity. .... Thus, if so much is taken that the value of the original is sensibly diminished, or that the labours of the original author are substantially, and to an injurious extent, appropriated by another, that is sufficient, in law, to constitute a piracy pro tanto. In deciding questions of this sort, regard must be had to the nature and objects of the selection made, the quantity and value of the materials used, and the degree to which the use may prejudice the sale, or diminish the profits,

24 Galago Publishers (Pty) Ltd and Another v Erasmus 1989 (1) SA 276 (A) at 280B-D. 25 Payen Components SA Ltd (above) at 451D; and see, too, Newspaper Licensing Agency Ltd v Marks and

Spencer Plc [2001] UKHL 38 the speech of Lord Hoffman at para 19.

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direct or indirect, or supersede the objects of the original work. It may be relevant to consider whether there has been an animus furandi on the part of the defendant in the sense of an intention on the part of the defendant to take for the purpose of saving himself labour. Many mixed ingredients enter into the consideration of such questions. In short, the question of substantiality is a matter of degree in each case and will be considered having regard to all the circumstances. Generally, it is not useful to refer to particular decisions as to the quantity taken.26 (our underlining)

20. In the 16th edition of Copyright the authors at 7-28 say this:

The test [for substantial part] has been put in a number of similar ways. Has the infringer incorporated a substantial part of the independent skill, labour, etc contributed by the original author in creating the copyright work? Has there been a substantial appropriation of the independent labours of the author? Has there been an appropriation of a part of the work on which a substantial part of the authors skill and labour was expended? Has there been an over-borrowing of the skill, labour and judgment which went into the making of the claimants work? Has the defendant made a substantial use of those features of the claimants work in which copyright subsists? (our underlining)

21. The authors of the 16th edition of Copyright continue at 7-30 (p.441), as regards the

meaning of substantial copying, as follows:

The quality or importance of what has been taken is much more important than the quantity. The issue thus depends therefore not just on the physical amount taken, but on its substantial significance or importance to the copyright work, so that the quality, or importance, of the part is frequently more significant than the proportion which the borrowed part bears to the whole. . Quality and importance must therefore be understood in terms of the features of the work which made it an original work in the first place. It follows that the quality relevant for the purposes of substantiality in the case of a literary work refers to the originality of that which has been copied. (our underlining)

26 Copinger and Skone James Copyright 12th ed at 8-26 and 8-27, quoted with approval in Payen Components

SA Ltd (above) at 451J-452C. See, too, the 16th edition of Copyright (ibid.) at 7-28.

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22. This point is further made by the authors of the 4th edition of The Modern Law of Copyright

and Designs at p.82 in the following way:27

As soon as a situation arises where not all the work has been copied, or where imitation is not exact, the court has to decide whether what the defendant has taken is a substantial part; and the answer to that question depends at least in part on the degree of the originality of the part that is taken. (our underlining)

23. The underlined words in the above three passages quoted are critical, we submit: whatever

the amount of Moneywebs article (in each case) used by Fin24, it is the originality of the

parts used which is relevant to the inquiry into whether there has or not been any

reproduction for purposes of the infringement inquiry. If the parts used no matter how

large in quantity of words were not the original result of the applicants independent skill,

labour and expertise and were an essential part, there can be no basis for a finding of

infringement even if reproduction of those parts is clearly established. Similarly, a value

judgment must be exercised on whether the material in which copyright is claimed

constitutes a work or is too trivial to merit protection.28

24. It follows that originality of the parts used from the source work must first be found before

any inquiry into actionable reproduction and infringement can take place. And in this

regard, on the legal basis submitted above, the onus is on an applicant to demonstrate, by

placing facts before the court, that the parts used by a respondent are the product of the

authors own skill and judgment: it is insufficient for an applicant simply to allege that the

work as a whole is original and that skill and judgment were expended.

27 Laddie, Prescott & Vitoria The Modern Law of Copyright and Designs 4th ed 2011. 28 Accesso CC v Allforms (Pty) Ltd [1998] 4 All SA 655 (T) at 668.

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25. Thus:

25.1. Where the parts used are merely a commonplace arrangement of ordinary words or

well-known data,29 these parts would not be original, accordingly not susceptible

to copyright protection, and therefore their reproduction (even in very large

quantity) would not amount to copyright infringement. This is a different inquiry

from testing whether arrangements of ordinary words were devised using skill and

judgment such that the entire work may be considered original for that reason, as

opposed to the mere arrangements of ordinary words on their own (which may

not be original).

25.2. A reason for excluding copyright protection in this way from ordinary words, data or

facts (which could include news reporting) is that ordinary words, data and facts by

their nature have to be expressed either in one way (or in at least a limited number

of ways) and have necessarily to be accompanied by other facts to give them any

sensible meaning.30 Certain arrangements of words can therefore only be expressed

in a limited number of ways such that the resultant selection is commonplace:31 this

makes the arrangement of words unoriginal (no skill or judgment is required for the

arrangement for the reason that to be intelligible and useful the words in question

must not only all appear, but also in a specific, non-variable order), they would not

therefore qualify for copyright protection and accordingly there can be no

29 Biotech Laboratories (Pty) Ltd v Beecham Group Plc and Another 2002 (4) SA 249 (SCA) para 9, relying on

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 (HL) at 469B-E. 30 Harper & Row Publishers Inc v Nation Enterprises 471 US 539 (1985) para 98-99. 31 Such as, for example, in the appointment pages of a diary: Waylite Diary CC (above) at 653B-C. Or in a

commentary to revenue legislation: Juta & Co Ltd and Others v de Koker and Others 1994 (3) SA 499 (T) at 505D-J. See, too, G A Cramp & Sons Ltd v Frank Smythson Ltd (House of Lords) [1944] AC 329 at 329-340.

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suggestion of any infringement if a third person were to repeat them in that same

arrangement. In arrangements of this kind, [t]o secure copyright for this product it

is necessary that labour, skill, and capital should be expended sufficiently to impart to

the product some quality or character which the raw material did not possess, and

which differentiates the product from the raw material.32

25.3. The rationale for not recognising the requirement of originality in these

circumstances (thus denying copyright protection) is to be found in copyright laws

emphasis on the protection of original expression of information,33 rather than on

any restriction on the dissemination of information.34

25.4. The above arguments expose the mischaracterization by Moneyweb, in paragraphs

18 to 20 of Moneywebs heads of argument, of Fin24s position expressed in

paragraph 5.1 of its answering affidavit (record p.263). Fin24 does not contend for

any absence of copyright in the expression of news, but instead in the underlying

facts contained in that expression.

32 Macmillan & Co Ltd v Cooper (Privy Council) (1923) 40 TLR 186 at 188, which was a case concerning

university textbooks which contained excerpts from existing material together with additional notes for students.

33 Jacana Education (Pty) Ltd v Frandsen Publishers (1996) JOC 624 (T) at 623: The test is not whether the information was utilised by the respondent but whether its presentation has been reproduced or copied. (our underlining)

34 Ashdown v Telegraph Group Ltd [2002] Ch 149 CA; Laddie Prescott & Vitoria The Modern Law of Copyright and Designs vol I (4th ed 2011) 102-103. See, too, Toro Co v R & R Products Co 787 F2d 1208 (8th Cir 1986) at 1212 and the US doctrine of merger: as: Under the copyright law doctrine of merger, a close cousin to the idea/expression dichotomy, copyright protection will be denied to even some expressions of ideas if the idea behind the expression is such that it can be expressed only in a very limited number of ways. The doctrine is designed to prevent an author from monopolizing an idea merely by copyrighting a few expressions of it.

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26. These broad principles find particular application in the dissemination of news, which may

largely consist of articles containing commonplace arrangements of ordinary words or well-

known data. We point out that articles of this kind would be exempt from copyright

protection irrespective of the provisions of section 12(8)(a) (news of the day that are mere

items of press information). It is only once the articles in issue pass the threshold of

originality (and are thus afforded copyright protection by the Act) and a qualitatively

substantial reproduction in respect of the original portion(s) has been found that the

second-stage inquiries under section 12 can commence into whether they are nevertheless

exempt from copyright protection as contemplated by that statutory provision.

27. In paragraph 25 of Moneywebs heads of argument, it is contended that news articles

should be treated no differently, outside the provisions of section 12 of the Act, to any

other literary works. This is correct, and indeed we advance this as the very nub of our

argument, namely that news articles must meet the threshold test of originality as is the

case with every other copyright work. As a matter of fact (not law) news articles which

comprise a rendition of facts and data will only be adjudged to be original if the expression

transcends the mere rendition of facts and data. The same would apply, for instance, to

the configuration of a diary (Waylite Diary CC para 25.2 above) or a commentary on a

statute (Juta & Co above, similarly).

28. Insofar as there is a suggestion in Moneywebs heads of argument (para 21) that it engages

in research-based original journalism, this is simply wrong. None of the Moneyweb

articles in issue could qualify as research-based original journalism, as that term is

understood, properly interpreted. Each of the articles is simply reporting of the news.

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Indeed it is temerarious of Moneyweb to suggest that Moneywebs articles in issue could

on any basis qualify as research-based original journalism. Therefore, to contend (as

Moneyweb does) that the public interest [in these circumstances] generally outweighs the

public interest in news dissemination in these circumstances, is unjustified: in matters of

news dissemination (as opposed to research-based original journalism), the public

interest ought to be at the forefront of considerations of appropriateness.

B.1 Section 12(8)(a)

29. It is in these terms:

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. (our underlining)

30. We know of no South African reported decision on this statutory provision. Its

jurisdictional requirements for present purposes are these:

30.1. As before, a prior finding that, but for the prospective application of the section,

copyright would subsist;

30.2. News of the day (in whatever form); and

30.3. Which is an item or items of press information.

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31. The expressions news of the day and press information are very broad and susceptible

to a variety of constructions, we submit. In this regard:

31.1. news of the day, on an ordinary construction, would include newly-received or

noteworthy information (especially about recent or important events) which is

current on the date of its dissemination (as opposed to old news or dated

information which, although interesting and noteworthy, is not newly-received or

hot off the press). English fair dealing cases have interpreted current events

(synonymous with news of the day) as news events that occupy the public mind.35

31.2. press information, on the other hand, must surely be interpreted to mean that the

news of the day in question must be of the kind which would be imparted to the

press for information purposes in whatever form.

31.3. There is therefore no warrant on a proper construction of the words press

information to restrict those words to news of the day being imparted to the

press solely in the form of a press release. Although a press release is surely a form

of press information, it is merely one of several potential forms which press

information could take. Such other forms of press information would include, we

submit, information imparted to the press through an interview or, indeed, at any

occasion where the disseminator of the information intends (by whatever means) to

inform the press. This has important implications in the context of those of the

35 Ashdown v Telegraph Group [2002] Ch 149 CA at paras 63-64; Hyde Park Residence Ltd v Yelland and

Others [2001] Ch 143 at paras 28-32.

20

articles in issue which are based on public declarations by officials to the media, such

as at interviews or media briefings.

31.4. On this construction, we submit that the legislature recognises that news of the

day which is a mere item of press information in the sense that the original news

disseminator intends to inform the press at large of the news imparted, has intended

by section 12(8)(a) to afford no monopoly to anybody over the content of that news.

And it makes no difference whether the news of the day is first communicated to a

single member of the press: the content of the news remains disseminated to the

public at large for reproduction by the public at large, even (and especially) when

first reproduced by that single member of the press.

32. In paragraph 53 of its heads of argument, Moneyweb contends that press information

should be understood to mean information given to the press which is intended to be

conveyed by the press to the general public in that precise form. We submit that there is

no basis for such a restricted interpretation: the statutory provision does in no way direct

the press to convey to the general public (or to anybody else) the information conveyed to

itself in the same form.

33. The reason for this is self-evident: it would be senseless to oblige the press to inform its

electronic readership (or audio listenership, for example) if the original form of the press

information is not susceptible to further dissemination in the same form. An illustrative

example of this would be the news of the day supplied (as items of press information)

during the media briefings which formed the subject of Moneywebs articles in issue

21

entitled Group Five hits rock bottom, McDonalds plans to launch McKitchen, Defencex

mastermind rallies support and Chis Walker breaks the silence. Moneywebs source in

each of these articles was public addresses given to the media.

34. We note in this regard that Moneyweb at least accepts that news of the day that are mere

items of press information could take other forms than a press release (heads of

argument, para 53).

B.2 Section 12(1)(c)(i)

35. This is the fair dealing exception to copyright infringement contained in the Act on which

Fin24 relies.

36. As before, any inquiry into fair dealing would necessarily be premised on a finding (which

we submit ought not to be made) that copyright subsists, in other words, that the

requirement of originality in each of the articles in issue is met, that infringement has

occurred in respect of a qualitatively substantial portion with reference to whether that

portion has been shown by Moneyweb to be original, and it accordingly renders

permissible (in the circumstances contemplated by the statutory provision) the

infringement in question.

37. As before, we know of no reported South African decision on section 12(1)(c)(i).

38. Section 12(1)(c)(i) for present purposes provides as follows:

22

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.

39. The above exception, legislatively-created for fair dealing in literary and musical works,

extends (as the words imply) to dealing with the work otherwise subject to copyright

protection. More importantly, it specifies that copyright which comprises a bundle of

rights vested exclusively in the author or owner by section 6 shall not be infringed by

dealing with the work in the circumstances stipulated. The act of reproducing the work in

any manner or form which is part of the author or owners bundle of rights referred to

collectively as copyright is thus permissibly done by another provided the requirements

of section 12(1)(c)(i) are met.

40. The statutory provision contains three essential elements:

40.1. First, the dealing in the work must be fair;

40.2. Second, that fair dealing must be for the purpose of reporting current events in a

newspaper, magazine or similar periodical; and

40.3. Third, the dealing must attribute the work, by mentioning the source as well as

the name of the author if it appears on the work.

23

41. In general terms, as regards these three requirements:

41.1. As to the first, the requirement of fairness is almost immeasurably broad in terms

of the range of prospective factors which a court ought to take into account to make

such a determination. We shall refer to relevant foreign jurisprudence in this regard

in order to focus the inquiry.

41.2. As to the second, the requirement that the purpose of the dealing must be for

reporting current events in a newspaper, magazine or similar periodical, we submit

that Fin24 is, in the current day and age, at least a periodical similar to a newspaper

or magazine (there is no requirement in the statutory provision that the medium be

print the medium can just as conceivably and acceptably be electronic; this

medium is certainly not excluded whether expressly or by implication). Whether the

dealing was for the purpose of reporting current events may be assessed with

reference to such factors as the timing of the dealing (the sooner the dealing after

first publication of the source work, the more likely the purpose of the dealing will

be regarded as to report current events) and whether the user is a bona fide news

publication (which is clear on the papers).36

41.3. As to the third, the requirement of attribution by mentioning the source and the

name of the author (if it appears on the work), the statutory provision is silent on the

manner and method of the mentioning. The verb to mention should therefore

be given its ordinary meaning, in our submission, which is clearly satisfied in each of

the articles in issue. 36 See, for example, Media Works NZ Ltd v Sky Television Network Ltd [2007] NZHC 924 para 48.

24

42. These submissions are therefore directed principally at the first and third elements, that is,

at the requirements of fairness and attribution.

B.2.1 Fairness

43. Fairness has sometimes been gauged by seeking to answer the hypothetical question as to

whether a fair-minded and honest person would (or might) have dealt with the source

work in the same manner that the person dealing with it did.37 The test for fairness is

objective.

44. When considering foreign jurisprudence in this regard, we sound a cautionary note: some

jurisdictions, notably the American ones, have codifications on what constitutes fairness

in regards to fair dealing, or the broadly equivalent fair use in the United States. In

American law, [t]hese factors establish the contours within which a court may investigate

whether, in a given case, a finding of fair use would serve the objectives of copyright.38

The English courts, however, are bound by no such codification, yet they have imported

some of the factors for assessing fairness contained in some of those codes. The

assessment is carried out by considering these factors individually and deciding each one

either in favour of or against fairness, and all factors weighed up in a summative

impression, as appropriate on the facts of the case. The English courts treatment of

fairness in this context by allowing itself to be influenced by foreign developments rather

37 Media Works NZ Ltd (above) at para 59 and Newspaper Licensing Agency Ltd v Marks and Spencer Plc

[2001] 3 All ER 977 at para 44. 38 Per Tjoflat J in Cambridge University Press v Patton and Others Case Nos 12-14676 & 12-15147 (11th Cir

unreported 10 August 2014) at 5.

25

than considering themselves bound by these is therefore instructive, we submit, given

the absence of such codification in South African law.39

45. The English statutory provision on fair dealing is contained in section 30 of the English

Copyright Designs and Patents Act 1988, the material parts of section 30(2) being fair

dealing with a work (other than a photograph) for the purpose of reporting current events

does not infringe the copyright in the work provided that it is accompanied by a sufficient

acknowledgment. The meaning of sufficient acknowledgment is defined further to

mean an acknowledgment identifying the work in question by its title or other description

and identifying the author . (section 178).

46. The English principles are usefully summarised in two reported judgments: by the Court of

Appeal in Pro Sieben Media AG v Carlton UK Television Limited and Another [1998] EWCA

Civ 2001 and Newspaper Licensing Agency Limited v Marks & Spencer Plc [1999] EWHC

Patents 266.

47. In Pro Sieben, the Court said this:

47.1. Fair dealing is a question of degree (relying on Hubbard v Vosper [1972] 2 QB 84 at

94, and at 93) where Lord Denning said It is not fair dealing for a rival in the trade to

take copyright material and use it for his own benefit) and of fact and impression;

39 The caution when applying foreign law, sounded in Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589

(A) at 613D-F, on account of differences in statutory provisions applicable in those jurisdictions, is apposite, we submit. On the purpose and role of this exception in the South African environment, see the informative account given by Shay RM Exclusive rights in news and the application of fair dealing (2014) 3 South African Mercantile Law Journal.

26

47.2. The degree to which the challenged use competes with exploitation of the copyright

by its owner, although a very important consideration, is not the only

consideration;

47.3. The extent of the use is relevant, but its relevance depends on the particular

circumstances (thus, in Hubbard (above), the court contemplated a case in which the

quotation of an entire short work might be fair dealing);

47.4. In the words for the purpose of reporting current events, the mental element on

the part of the user is of little more importance than in such everyday composite

expressions as for the purpose of argument or for the purpose of comparison

the words in the context of or as part of an exercise in could be substituted for

for the purpose of without any significant alteration of meaning;

47.5. It is therefore not necessary for the court to place itself in the shoes of the infringer

in order to decide whether the offending piece was published for the particular

purpose;

47.6. reporting current events is an expression of wide and indefinite scope, any attempt

to plot its boundaries is doomed to failure, and hence the expression should be

interpreted liberally;40 and

40 A liberal interpretation of the fair dealing purposes being the correct approach, has been confirmed in

English case law: Fraser-Woodward Ltd v BBC and Another [2005] EWHC 472 (Ch) at paras 36-7; Ashdown (above) at para 55; Marks & Spencer (above) at para 40. See also the Supreme Court of Canada decision in CCH Canada Ltd (above) at para 51, and the New Zealand High Court decision in Media Works NZ Ltd (above) at para 45.

27

47.7. the requirement of sufficient acknowledgment by identifying the author does

not mean that he should be identified by name: another form of identification is

sufficient, such as by a logo by which he is accustomed to identifying himself.

48. In Marks & Spencer, the court approved of the summary contained in Pro Sieben and

added the following (at para 18):

48.1. The publication of a report or article in the press may itself constitute a current

event, and a defendants publication may constitute fair dealing for the purpose of

reporting current events though it contains no analysis or comment or any matter

other than use of the copyright material: the fact that the copyright material stands

alone may, however, be relevant to the issue of fairness of the dealing; and

48.2. Reporting of current events does not apply to matters which are merely currently

of interest but are not current events, or to matters not previously known and of

historical interest alone publication of matters which are not current events can

only be justified if reasonably necessary to understand, explain or give meaning to a

report of current events.41

49. The court in Marks & Spencer went on to summarise the law thus (in para 19):

49.1. A defendant must first establish that the dealing was part of an exercise in reporting

current events;

41 See, too, Ashdown (above) at paras 63-64; Hyde Park Residence (above) at paras 28-32.

28

49.1.1. There is a public interest in the reporting of current events which justifies

overriding any barrier placed in its way by the law of copyright;42

49.1.2. Applying a liberal interpretation to current events, the event need not be

national, political or otherwise an important event: it may be a sporting event

and it may be a matter of entirely local interest to a few people, and the

threshold is not high or the hurdle difficult to surmount because freedom of

speech and freedom of information require that gateway to be wide;

49.2. Thereafter, a defendant must establish that the way the current events are reported

is in all the circumstances fair, having regard in particular to:

49.2.1. The interests of the copyright owner and how they are affected;

49.2.2. The activity carried on by the reporter;

49.2.3. Whether the copyright owner and reporter are in competition;

49.2.4. The extent that the copyright work is copied (we submit that for this to be a

separate factor as part of the fair dealing inquiry, it cannot be the same

inquiry as that of substantiality for the purposes of establishing

infringement, for the reason that fair dealing, as an exception, presupposes

that infringement has already been shown); and

42 See, too, HRH The Prince of Wales v Associated Newspapers Limited [2006] EWHC 522 (Ch) at para 165:

The defence [of fair dealing] is intended to protect the role of the media in informing the public about matters of current concern to the public.

29

49.2.5. Whether the report should reasonably have been made in a manner less

intrusive upon the copyright owner's rights. If it appears that the reporter

has dealt with the copyright work, not in order to report current events, but

for some extraneous purpose, for example in order to exploit the copyright

work under the guise of reporting current events and thereby with impunity,

his use is not fair. A balancing exercise is called for between the interest of

the copyright owner in the preservation of his copyright and its value and

the interest of the reporter in dealing with the work as part of the exercise

of reporting current events. Both the first and second questions are "jury

questions" on which a common-sense judgment is called for: it will often be

a matter of impression reached after a careful scrutiny of the copyright work

and the "report" read in the light of the evidence and surrounding

circumstances.

49.3. If the first two hurdles are surmounted, the third hurdle must then also be

surmounted of a sufficient acknowledgement.

50. And in the subsequent case of Ashdown v The Telegraph Group Limited [2001] EWCA Civ

1142, Lord Phillips quoted with approval (at para 70) the following passage from Laddie,

Prescott and Vitoria:

"It is impossible to lay down any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression. However, by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor's exploitation of the copyright work, a substitute for the probable purchase of authorised copies, and the like. If it is, the fair dealing defence will almost certainly fail. If it is not and there is a moderate taking and there are no

30

special adverse factors, the defence is likely to succeed, especially if the defendant's additional purpose is to right a wrong, to ventilate an honest grievance, to engage in political controversy, and so on. The second most important factor is whether the work has already been published or otherwise exposed to the public. If it has not, and especially if the material has been obtained by a breach of confidence or other mean or underhand dealing, the courts will be reluctant to say this is fair. However this is by no means conclusive, for sometimes it is necessary for the purposes of legitimate public controversy to make use of 'leaked' information. The third most important factor is the amount and importance of the work that has been taken. For, although it is permissible to take a substantial part of the work (if not, there could be no question of infringement in the first place), in some circumstances the taking of an excessive amount, or the taking of even a small amount if on a regular basis, would negative fair dealing."

51. These cases have revealed several factors which are instructive to the present case.

Scrutiny of the considerations that remain constant in all instances of alleged infringement

reveals that the context in which the uses were made points to fairness.

52. Commercial gain has been noted as a factor in the fairness inquiry. Users are typically

engaged in an exercise of reporting current events for financial gain, but this does not

derogate from the required purpose when determining whether the conduct falls within

the purview of the fair dealing exception. The element of financial gain is to be considered

under the assessment of fairness, although in some instances the fact that the user collects

information from external sources and compiles this information in a different format to

send to paying subscribers could disqualify it from relying on the defence ex ante, as it will

not be engaged in an exercise of reporting current events. An example of commercial gain

rendering the dealing unfair would be a business set up for no purpose other than, for

example, to provide a commercial media monitoring service to business customers such

that it makes millions of pounds from its own activities which include scraping the

Publishers websites for its own commercial gain, and it does this by using so-called

31

spider programmes to scrape or read the content.43 Similarly, the fact that the user

was a subscription service that charged its members a fee to access the scraped or

substantially reproduced content has proved critical to this element of fairness. Crucially,

this is not the present case, nor is this alleged, as there can be no doubt that Fin24 carries

on its trade by reporting current events rather than circulating information to a closed

group of corporate clients. 44

53. The fact that the two parties may be in competition would be of significantly less

importance in deciding whether the dealing was fair where, for example, the dealing is

done in terms of journalistic discretion, based on publicly-accessible material, as part of an

overall mission to provide news and coverage of current events on a publicly-available

platform (the world wide web) to all at no cost to the consumer. We submit that even

were dealing in this way (as a result of advertising, for example) to result in some financial

gain to the dealer, this would not on its own render the dealing unfair.

54. The statutory provision does not require that the reporting of current events be the sole

purpose: the requirements of the section are met once it is found that the reporting of

current events was the purpose, albeit not the sole or only purpose. To find otherwise

would restrict fair dealing to exclusively philanthropic dealing, which would be entirely

43 The Newspaper Licensing Agency Ltd and Others v Meltwater Holding BV and Others [2010] EWCH 3099

(Ch) at paras 3, 19 and 25; The Newspaper Licensing Agency Limited and Others v Meltwater Holding BV and Others [2011] EWCA Civ 890.

44 This conclusion may be drawn from the reasoning of Peter Gibson LJ in Marks and Spencer (above) at para 43: [T]o interpret s. 30 (2) as providing a defence to copyright infringement in a case like the present would seem to me to have nothing to do with the public interest and everything to do with serving the private commercial interests of M&S. I can see no public interest reason why the legislature should want to provide a defence to an infringement of copyright for the copying within a commercial organisation for commercial reasons of material subject to copyright, whereas a public interest can be discerned in the public reporting of newsworthy current events.

This was similarly the case in Meltwater (above), which distinguishes the present facts from these cases.

32

unwarranted (not to mention that even in the case of philanthropy, it is frequently the case

that it is done with a purpose of producing gain to the philanthropist in the form of

publicity, which may easily be susceptible to conversion into financial gain at a later stage).

Further, the omission of a non-commercial qualifier (as employed by the legislature in

section 12(1)(a)) indicates the legislative intention for this exception to apply to news

reporters who make use of copyright works in the course of reporting news events as part

of a commercial enterprise.

55. The overriding purpose of financial gain by serving a deliberately-restricted market (as

opposed to the public) was, it appears, principally what motivated the courts in Meltwater

(above, both at first instance and on appeal) which dealt with Meltwater as a news

scraper using a spider programme to find that the public interest was not advanced

by Meltwaters activities: Meltwater News is not intended for public consumption; it is

tailored, and addressed exclusively, to particular End Users for their clients purposes.

56. Thus, although the existence of financial gain may be a factor in deciding the purpose of

the dealing, it is by no means decisive and cannot place a use beyond the ambit of section

12(1)(c). In this regard, we submit that it is crucial to distinguish between news services

that compile their own reports for public consumption (of which Fin24 is an example),

news services which compile their own reports which are kept behind a pay-wall and thus

not freely available for public consumption (which Fin24 is not), and scraping services that

collect information from other publications in order to compile an aggregated list of

hyperlinks, sometimes accompanied by copy reproduced (not rewritten) from the source

(which Fin24 is also not).

33

57. Moneyweb argues that because the use competes with exploitation of the copyright work

and can act as a substitute for the work, Fin24s reliance on section 12(1) and fair dealing

defence must fail.45 It is submitted that the court should exercise tremendous caution

when applying this factor. If this factor is elevated to disproportionate importance as the

Moneyweb would have this Court do it would prove devastating to the value of the entire

provision by focusing the fairness enquiry on ascertaining simply whether two news

publications serve the same readership and thereby summarily deem the use unfair if one

sourced content from the other. The danger inherent in this approach has been recognised

by various foreign courts and cautioned against, most succinctly expressed in warning

sounded by McLachlin CJ in CCH Canadian Ltd (above) at para 59, echoed by courts in

Australia46 and New Zealand47: Although the effect of the dealing on the market of the

copyright owner is an important factor, it is neither the only factor nor the most important

factor that a court must consider in deciding if the dealing is fair.

58. It is accepted that this factor should play a role in the determination of fairness, but it

should take its proper place along with all other relevant considerations that culminate in

an overall conclusion of fairness or unfairness, instead of pre-empting the evaluation

through over-reliance on one simplistic aspect.

45 Moneywebs heads of argument in paras 74.2 and 76 respectively. 46 Per Bennet J in Fairfax Media Publications v Reed [2010] FCA 984 at para 142: The commercial nature of

[the respondents] activities in providing a subscription based service does not preclude a finding that its use of [the applicants work] is a fair dealing, citing TCN Channel Nine v Network Ten (2001) 108 FCR 235.

47 Again per Winkelmann J in Media Works (above) at para 62: [T]he defence of fair dealing allows use of anothers copyright work, by a competitor or otherwise, in certain limited situations (such as news reporting), because it is thought to be desirable to encourage such uses. (our underlining)

34

59. Fair dealing is more readily established where the source work referring to current events

is susceptible to being considered as largely factual. There are occasions, for example, that

the public has an interest not only in the information contained in the source being

published, but also in being told the very words used by the author of the source work,

notwithstanding that the author enjoys copyright over them.48 Importantly, the articles in

issue are not intended to relay an editorial opinion or provide in-depth analysis of recent

events, which would naturally attract more stringent protection; they simply report

information, sometimes relaying the very words spoken by a figure central to the news

event. In this regard, the public interest in receiving information about relevant political

and economic events should determine the degree of lenience that users are allowed in

making use of existing works to create new works (if the users serve that public interest by

disseminating the work as widely as possible).49 Considering that fair dealing claims are

feasible in relation to popular culture and sports news programmes50 where the nature of

the work is much closer to the intended target of copyright protection works that are

primarily or exclusively factual in nature must allow a greater amount of use before this

factor is decided against the user. This approach is reflected in foreign copyright principles

and doctrines.51

48 HRH The Prince of Wales (above) at para 171, relying on Ashdown (above). 49 As held by Winkelmann J in Media Works (above) at para 67: The greater the public interest in a particular

event, the greater the interest in the reporting of it. 50 Media Works (above) at paras 46-47; British Broadcasting Corporation v British Satellite Broadcasting Ltd

[1992] 1 Ch 141 at 154. 51 In the United States the doctrine of merger (as explained in note 34 above) safeguards the public

domain and encourages prolific use of factual works where no literary elegance is evident. For US case law confirming that more leeway is given to uses of informational works in claims of fair use, see Cambridge University Press (above); Dr Seuss Enters LP v Penguin Books USA Inc 109 F3d 1394 (9th Cir 1997); Hustler Magazine Inc v Moral Majority Inc 796 F2d 1148 (9th Cir 1986).

35

60. The monopoly granted over copyright works is inherently subject to various public interest

limitations, notably considerations of freedom of expression and the widest possible

dissemination of information. In this context the fair dealing exception contained in section

12(1)(c) must be applied purposively, in line with constitutional principles and public policy

goals. Fair dealing provisions are designed to advance the central goal of copyright: to

encourage the abundant creation of socially-valuable works. Section 12(1)(c) is clearly

intended to stimulate the proliferation of news reportage, so as to serve this same central

goal. Finding against the purposive application of this crucial mechanism would be

disregarding the significant public interest entrenched in the aims of the Copyright Act and

could be fatal to the extra-judicial reliance placed on this particular provision by the South

African press.

61. One may reasonably ask the question as to how the public interest would not be served by

preventing the widest possible dissemination of largely factual material describing current

events; and obversely, how the public interest is served by as wide a dissemination as

possible of facts which constitute current events. Below it is illustrated how the aims and

intentions of copyright law are best served in the constitutional context by the liberal

interpretation and flexible application of the fair dealing provisions so as to accommodate

legitimate uses of copyright works.

B.2.2 Attribution

62. Section 12(1)(c)(i) requires nothing more than that the source be mentioned, as well as the

name of the author if it appears on the source work.

36

63. Mentioning, we submit, is synonymous with referring to. We submit that mentioning

the source and author (if the latter is known) is broader than identifying in the English

section 178 read with section 30(2).

64. Moreover, substantial compliance with a statutory provision may be sufficient in certain

circumstances.52 The question resolves itself into whether the object of the statutory

provision has been achieved (which is ascertained from the language, scope and purpose

of the enactment as a whole and the statutory requirement in particular) and this even

where the formalities required by the statute are peremptory.53 This is especially pertinent

to the purpose of section 12(1)(c) when interpreted in line with the constitutional

mandates expressed and the objectives implicit in section 16 of the Bill of Rights, relating to

freedom of expression, which we address further below.

65. We submit that on any reading of the attribution requirement contained in section

12(1)(c)(i), read with the Act as a whole, its object is to acknowledge or credit the source

and author if the latter is known. We submit that although in 1978 surely the best way to

do so (indeed, perhaps even the only way in the paper-based, literary work industry of the

time) was by mentioning the source and author if known, there is no reason to conclude

that the object of the attribution requirement in section 12(1)(c)(i) could not be served in

2015 by other, arguably better, ways, such as by providing a deeplink that identifies the

source and which refers the reader back to the source by the simple click of a button.

52 Ferris and Another v Firstrand Bank Limited 2014 (3) SA 39 (CC) at para [21]. 53 Liebenberg NO and Others v Bergrivier Municipality 2013 (5) SA 246 (CC) at paras [22]-[26] and the

authorities there cited.

37

B.2.3 Constitutional issues in fair dealing

66. Sections 16(1)(a)-(b) of the Constitution provide as follows:

Freedom of expression

16 (1) Everyone has the right to freedom of expression, which includes

(a) Freedom of the press and other media;

(b) Freedom to receive or impart information or ideas;

.

67. Fin24 makes no collateral challenge to the validity of any provision of the Copyright Act on

constitutional grounds. Instead, we contend that the relevant provisions of the Copyright

Act should be interpreted (and given effect to) in the light of the above provisions of

section 16 of the Constitution.54 We do not contend that section 16 permits copyright

infringement: we contend that when determining difficult cases of alleged copyright

infringement, regard should be had to the object and purport of section 16.

68. The role of the media has, in particular, been recognized as (among other things)

facilitating and driving freedom of speech. Especially, the duty or responsibility of the

media to disseminate information to the citizenry has been recognised (admittedly in the

context of defamation)55 in the following terms as:

54 Record pp.292-293 answering affidavit para 41. 55 National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA)

38

the right, and indeed a vital function to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion56

and

the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process57

69. By this, we do not mean to suggest (let alone contend) that the media (of which both

parties form part) should be elevated to any status allowing them to ride roughshod over

the law of copyright for no reason other than their judicially-recognised right to inform the

citizenry about every aspect of public, social, political, social and economic activity: instead,

we submit that their right in this regard should be advanced by a constitutionally-compliant

interpretation of the copyright law.58 To recognise this imperative is justified; the idea that

journalism has a different and superior status in the Constitution is not.59

70. The requirements of section 12(1)(c)(i) of the Act must, we submit, be understood through

the prism of the Constitution and, specifically, the right to freedom of expression: this is

trite.60 The inquiry must proceed by balancing the interests of the copyright owner against

the claim of free expression for the very purpose of determining what is unfair and

56 At 1209I. 57 At 1210H. 58 The enforcement of intellectual property law must be constitutionally tenable: Laugh It Off Promotions CC

v SAB International (Finance) BV t/a SABMark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) at 156A.

59 Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) at para [6].

60 Laugh It Off Promotions CC (above) at 164E.

39

materially harmful to the copyright owners interests.61 This means construing section

12(1)(c)(i) in a manner most compatible with the right to free expression.62

71. Unlike section 34(1)(c) of the Trade Marks Act, section 12(1)(c)(i) contains no internal

limitations (such as unfair advantage of or detriment to the mark), other than the words

fair dealing. Therefore, we submit for this particular reason that the injunction that

courts are obliged to delineate the bounds of the constitutional guarantee of free

expression generously63 is even more apt in the present case: fairness is the only criterion,

and dealing, even if it causes some harm to the copyright owner, is not precluded provided

it is fair.

72. We submit that the special role of the media in an open and democratic society in

informing the citizenry on the vital areas of activity recognised in the Bogoshi case

(quoted above) is a compelling factor in favour of the generous interpretation of free

expression to be accorded to a constitutionally-compliant interpretation of section

12(1)(c)(i). What is fair, in turn, will have to be assessed case by case with regard to the

factual matrix and other context of the case.64

73. We submit that the relevant factual matrix and other context to be taken into

consideration for the purposes of deciding what dealing is constitutionally fair when it

61 This was the test expounded by the Constitutional Court in relation to the competing rights of freedom of

speech and a trademark owner in terms of the anti-dilution provisions of section 34(1)(c) of the Trade Marks Act of 1993: Laugh It Off Promotions CC (above) at 165D.

62 Ibid. at 167E. 63 Ibid. at 166F. 64 Ibid. at 167H.

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comes to a media article on news and current events which would otherwise be subject to

copyright protection, are the following:

73.1. First, and most obviously, the fact that each of the works in question are media

articles on news and current events: the recognition of the right and indeed a vital

function of the media in Bogoshi to make available to the community information

and criticism about every aspect of public, political, social and economic activity and

thus to contribute to the formation of public opinion must be protected and

advanced.

73.2. Second, because there are no internal limitations in the wording of section 12(1)(c)(i)

relating to harm to the copyright owner as there are in section 34(1)(c) of the Trade

Marks Act, the dealing can cause some harm to the copyright owner provided the

dealing is otherwise fair.

73.3. Third, flowing from the second, the fact that Moneyweb and Fin24 may both be to

some extent in competition with one another would not on its own render the

dealing unfair: this is because there is no internal limitation in section 12(1)(c)(i)

which requires an inquiry into potential harm to be considered and weighed up.65

73.4. Fourth, the court in Bogoshi (above) specifically recognized the central interest of

the community to be informed about every aspect of public, political, social and

65 In this regard, we point out that in this context the American jurisprudence on fair dealing (fair use, as it

is called) is particularly uninstructive, because section 107 of the US Copyright Act 1976 does indeed contain internal limitations regarding harm, which our section 12(1)(c) does not, notably as to whether the use is of a commercial nature as well as the effect of the use upon the potential market for or value of the copyright work.

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economic activity and hence to contribute to the formation of public opinion. We

submit that this interest is protected and advanced by:

73.4.1. In the first place, an approach to originality in cases of news and current

events which promotes these interests of the community, rather than limiting

them in the sectarian interests of news providers (especially in cases such as

the present where all the articles in issue are freely available to the public,

without restriction);

73.4.2. In the second place, an approach to infringement which is permissive rather

than restrictive: in matters of news and current events, a qualitatively higher

level of copying should be permitted or, otherwise put, the nature and extent

of original creation in such areas should be reduced, rather than enlarged or

extended; and

73.4.3. In the third place, an approach to fair dealing which serves these interests of

the community, by promoting dealing in news and current events, mindful of

the new means of attributing source and the author in the digital age.

B.3 Unlawful competition

74. Our submissions on this cause of action raised by Moneyweb are made within the

particular framework of this case, which is that where the conduct at issue is alleged to

consist of reproduction of a literary work such that unlawfulness is constituted only as a

result of the provisions of the Act, there can be no general, catch-all residual basis in the

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common law for unlawfulness to be found should Moneyweb fail either to establish

subsistence of copyright or its infringement in terms of the Act.

75. This is because it is recognised that copyright is essentially not a positive right but a

negative right: it does not grant positive rights to its owner, merely negative rights to

prevent others from doing certain acts (such as reproduction) which are restricted to the

owner. As was said in Ashdown (above) at para 30:

copyright is essentially not a positive but a negative right. No provision of the Copyright Act confers in terms, upon the owner of copyright in a literary work, the right to publish it. The Act gives the owner of the copyright the right to prevent others from doing that which the Act recognises the owner alone has a right to do. Thus copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.

76. That unlawful competition as a matter of the common law cannot be brought in to save,

as it were, a copyright case which has foundered for failure to meet the requirements of

the Act, has been recognised by the Supreme Court of Appeal in Payen Components SA Ltd

(above)66 at 453F-G where the following was said:

much of Payen's evidence is to be found in the interstices between copyright and passing off. In the case of copyright s 41(4) of the Act expressly provides that no copyright or right in the nature of copyright shall subsist otherwise than by virtue of the Act or some other law. Turning to passing off, it has not been relied upon at all as such. In my opinion a Court should be wary of allowing the sharp outlines of these two established branches of the law of unlawful competition, evolved through long experience, to be fudged by allowing a vague penumbra around the outline. Unlawful competition should not be added as a ragbag and often forlorn final alternative to every trade mark, copyright, design or passing off action. In most such cases it is one of the established categories or nothing.

66 See, too, Memory Institute SA CC (above) at para [8].

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77. We submit that these dicta are compelling: there is no basis to extend recognition of an

action for unlawful competition in circumstances where the action for copyright

infringement has failed. There is no such category of unlawful competition recognised at

common law. We return to this further below when we deal with Moneywebs contentions

(and authorities relied upon).

78. Moreover, and in any event, we submit the very notion of unlawful competition implies

wrongful trading on a scale susceptible to causing harm: where at issue is, for example, a

proven scale of trading which is (all things considered) inconsequential in scope,67 the

maxim de minimis lex non curat finds application.

C. THE ARTICLES IN ISSUE

79. In the light of the above legal principles, we make the following submissions.

80. To the extent to which there are conflicting allegations of fact between Moneyweb and

Fin24, on the basis of the authorities referred to above the allegations must be resolved on

Fin24s papers on the application of the Plascon-Evans test, irrespective of whether the

onus on the issue in respect of which the fact is relevant is on Fin24.

81. Each of Moneywebs articles in issue being news articles is derived from one or several

other sources. The allegations made and evidence supplied by each respective author68 to

establish originality in these circumstances amounts to this: The article is an original work

67 Record p.289 answering affidavit para 35.2. 68 The authors affidavits all appear as part of annex Rvn18 to the founding papers, beginning at record

p.178.

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and required my independent effort, skill and expertise to write. There is, however, some

additional evidence contained in Moneywebs founding affidavit69 in respect of each article

in issue which is then confirmed by the authors in their confirmatory affidavits.

82. This evidence is, however, insufficient to sustain a