Moneyweb (Pty) Ltd v Media 24 Ltd and another
[2016] 3 All SA 193 (GJ)
Division:
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date:
5 May 2016
Case No:
31575/2013
Before:
DI BERGER AJ
Sourced by:
T Nzimande and L Rakgwale
Summarised by:
DPC Harris
. Editor's Summary . Cases Referred to . Judgment .
[1] Intellectual property Copyright News articles Fair dealing defence Copyright Act 98 of 1978 Section 12(1)(c)(i)
of the Act states that "copyright shall not be infringed by any fair dealing" 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 Court
found that the provision of a hyperlink complied with that requirement.
[2] Intellectual property Copyright News articles Originality Copyright Act 98 of 1978 Section 2(1) Section
provides that certain works, including literary works, shall be eligible for copyright if they are original While it is
permissible for an author to make use of existing material and still achieve originality in respect of the work which he
produces, the work must be more than simply a slavish copy ie it must in some measure be due to the application of the
author's own skill or labour.
Editor's Summary
The two protagonists in this case were both publishers, whose businesses included publishing articles on the
internet. The applicant ("Moneyweb") sought a declaration that the publication of seven articles by the first
respondent ("Media24") was unlawful. Moneyweb contended that Media24 infringed its copyright under the
Copyright Act 98 of 1978 ("the Act"). It also sought to interdict the continued publication of the articles, and a
further declaration that Media24 and the second respondent were liable for the damages suffered by it as a result
of the publication of the articles.
Held Three issues appeared to be at the centre of this matter. First, there was a dispute concerning the originality
of Moneyweb's articles. Media24 argued that Moneyweb had failed to prove originality in any of its articles. Second,
if Moneyweb was able to prove originality in any of its articles, the question was whether Media24 had reproduced
a substantial part of the relevant article. Media24 admitted reproduction of part of the Moneyweb articles but
denied that the reproduction was substantial. Finally, Media24 contended that it was absolved from liability by
virtue of the statutory defences in sections 12(1)(c)(i) and 12(8)(a) of the Act.
Section 2(1) of the Act provides that certain works, including literary works, shall be eligible for copyright if they
are original. The latter concept is not defined in the Act. However, the authorities explain that the work should
emanate from the author himself and not be copied. While it is permissible for an author to make use of existing
material and still achieve originality in respect of the work which he produces, the work must be more than simply a
slavish copy. It must in some measure be due to the application of the author's own skill or labour. Moneyweb
correctly accepted that it bore the onus of proving originality. The Court examined each of the articles called into
question and
Page 194 of [2016] 3 All SA 193 (GJ)
found that it could not discern the nature and extent of the writers' contributions in several of the articles. It
concluded that Moneyweb had discharged the onus of proving originality in three of the seven articles. The
remaining four articles could therefore not be subject to a breach of copyright claim.
The Court then turned to consider one of the statutory defences upon which Media24 relied, viz section 12(8)(a)
of the Act. If the subsection applied to any of the Moneyweb articles, those articles would not enjoy copyright
protection. The section provides that copyright shall subsist in three categories of works: official texts and their
translations, political and legal speeches, and certain news of the day. The Court held that the section did not apply to the
three articles found not to be original works.
The next question was whether Media24 had reproduced any substantial part of the articles that had been proved
to be original works. It was found that Media24 had only reproduced a substantial part of one of the articles.
Section 12(1)(c)(i) of the Act states that "copyright shall not be infringed by any fair dealing". 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. The Court found that the provision of a hyperlink complied with that requirement.
Media 24 was found to have infringed Moneyweb's copyright in respect of the single article as referred to above.
As the infringement was not continuing, an interdict was deemed unnecessary.
Notes