The dramatic exit of columnist Darrel Bristow-Bovey from three newspapers and the exit of Elle editor Cynthia Vongai over allegations of plagiarism is a sign that media houses are taking the issue seriously. However, it has been suggested that no law against plagiarism per se exists in South Africa, and that it is not a legal term.
There has been scant mention of the Copyright Act of 1978 in media reports. The Act makes it unlawful to wholly or partially use works deserving of copyright protection.
For novels, poems, newspaper articles and so on to qualify for protection, they need to satisfy two general requirements. The work must be original and be in a material form. The threshold for originality is pegged quite low, requiring only that the originator of the work expend his or her own time, effort and skill in creating it. That it has to be in material form means that it should be a concrete expression of an idea. A thought articulated in conversation would not qualify. Similarly, there is no protection of what is termed “common information in the public domain”.
Section 6 of the Act explicitly lists the acts that would infringe the copyright vesting in the owner of the work. In terms of this, the right to reproduce the “work in any manner or form” or “make an adaptation of the work” vests with the copyright holder. In determining infringement, our courts compare works objectively to ascertain whether the two works, or parts thereof, are materially similar.
Reproduction and adaptation could be lawful in some circumstances. For instance, university students incorporate borrowed text into their work as a matter of course. But this is permissible only if the cardinal rule of attribution is always heeded. Copyright is also not infringed by any “fair dealing” with the work for the purposes of research or private study. It is allowed for the criticism or review of a work, or reporting current events in a newspaper or magazine, or by means of broadcasting or in a film.
In civil proceedings, the copyright owner need not prove that the other person had any knowledge of the infringing nature of the conduct; thus claiming that the “borrowing” was inadvertent or executed absent-mindedly is not a defence.
Are owners of copyrighted works thus protected against plagiarism? The answer is yes, even if copyright notice is not appended to such works. The law is clear on the issue, which is well-articulated by our courts, who have considered such matters.
When words appear under a byline, readers automatically assume they are the writer’s own. Were the authenticity of those words called into question, the message would be diluted and become less believable. In journalism especially, this is a dangerous trend. Readers expect a certain level of trustworthiness from journalists, and plagiarism disrupts that trust, and if proved, should not be brooked.
Janine Hollesen is a partner at law firm Jan S de Villiers