Originality key to copyright

People can access it 24 hours a day in real time. But it’s also easier and faster to copy copyright-protected works. 

The high court in Johannesburg delivered a ruling last month that saw a victory for media freedom. The court dismissed Moneyweb’s claims of unlawful competition and copyright infringement against Media24 in a case about six articles. It upheld Moneyweb’s copyright infringement claims regarding one article.

The court’s rationale for dismissing Moneyweb’s claims of copyright infringement on four articles was predicated on a finding that they were not original works of copyright.

Despite the court finding that three of Moneyweb’s articles were original, it only upheld Moneyweb’s copyright infringement claim in relation to one article. It found that the parts of the other two articles copied or reproduced by Media24 were not substantial and could not sustain a claim of copyright infringement.

In 2013 Moneyweb filed legal proceedings against Media24 for copyright infringement and unfair competition. Moneyweb alleged that Media24 had breached copyright “on an industrial scale” by fully or partially unlawfully publishing seven articles written by its journalists and contributors between July 25 2012 and July 1 2013.

At the heart of the case were two issues — whether the Moneyweb articles were original works of copyright and, if so, whether Media24 had unlawfully copied substantial parts of them.

A work is considered to be original if it has not been copied from existing sources and if its production required a substantial degree of skill, judgment or labour from the author. This should not be interpreted to mean that a work will only be regarded as original if it does not refer to existing material. If sufficient skill and effort have been used to create a subsequent work, it is possible to achieve originality in that work. 

The Copyright Act provides that “a work shall not be ineligible for copyright by reason only that the making of the work involved infringement of copyright in some other work”.  The court analysed each of Moneyweb’s seven articles. The case turned on the evidence, or lack of evidence, submitted by Moneyweb to substantiate its claims that the articles were original works. 

The court’s statements were clear that “more evidence was required to establish” that one of the pieces, titled “Annual packages for MPs may reach well over R1m”, was “an original work”.  The judge was unable to discern how much of the article was the journalist’s own work “or simply a repetition of what was said in her presence or of what was contained in a press release”. The court’s statements about Moneyweb’s other articles are much the same. 

It is evident that, had Moneyweb adduced sufficient evidence to support its claims of originality, the outcome of the case may have been different — at least as regards four of the articles.

Likonelo Magagula is the director of Norton Rose Fulbright’s intellectual property practice.

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