South Africa: Copyright, Fair Dealing And Hyperlinks

Last Updated: 29 June 2016
Article by Ilse Du Plessis

Most Read Contributor in South Africa, September 2018

A South African court has found that, for the purposes of fair dealing in copyright law, hyperlinks are a sufficient way of acknowledging source and ownership.

The recent decision in the case of Moneyweb (Pty) Limited v Media 24 Limited and Another (unreported case no. 31575/2013, 5 May 2016) attracted a great deal of publicity. This is possibly because the two main parties are media companies. Moneyweb is an online financial news service and Media24 has an online financial news aggregator, Fin24.

The central issue for the court to decide was whether Media24 had infringed Moneyweb's copyright in seven financial news articles. Each of the seven articles was written by journalists for, or on behalf of, Moneyweb and in each case parts of the article had been reproduced by Media24.

There was considerable hype about the case, and even the court papers were posted online. This suggested that the case would deal with some really big issues, for example, the extent to which copyright law is relevant in the digital age. As it turned out, the judgment was a bit more prosaic than that. However, it still managed to deal with some really interesting issues.

The first issue that the court dealt with was whether the seven articles enjoyed copyright. In South Africa, a work must be "original" to have copyright. "Original" refers to the fact that the work must have been the creation of the person claiming copyright, and that some time and effort must have gone into the work's creation – the expression "sweat of the brow" is sometimes used. Media24 argued that the articles were simply rehashes of press releases or transcripts of telephone interviews, and that little writing work had actually gone into them. The judge agreed with Media24 insofar as four of the seven articles were concerned. This meant that Moneyweb only had copyright in three articles.

The next issue was whether the copyright in these three articles had been infringed. For an infringement, a "substantial" part of the work must have been taken. As the courts have said on many occasions, it's a question of quality rather than quantity. Media24 disputed whether a substantial part of each of the three articles had been copied. The court agreed in respect of two of the three articles. The judge said that in one case, the first few paragraphs had been copied but the bulk of the article had not, whereas in the other four, extracts had been copied but they did not "form a continuous block of text", nor did they represent the "heart" of the article. In the case of the remaining article, however, there had been almost word-for-word copying in a substantial part of the text.

But did any of the exceptions or defences set out in the Copyright Act, 1978 apply? The first of these that was raised was what might be referred to as the "news of the day" exception. Section 12(8) of the Copyright Act says that there is no copyright in "news of the day that are mere items of press information". The court held that this exception is linked to the issue of whether the news was communicated to the media in the expectation that it would be published, as well as to the amount of independent work involved.

As for the one remaining article, it had involved original writing work – it had been written by a journalist who had attended an investment conference to which the media had not been invited and, as such, the exception did not apply.

Next to be considered was the "fair dealing" defence. Section 12(1) of the Copyright Act provides a defence in cases where the copying was "for the purposes of reporting current events in a newspaper, magazine or similar periodical" and in circumstances where the source and the name of the author are "mentioned".

The court noted that various factors come into play here. These include the nature of the medium, the time lapse between publication, the amount of text taken, and the extent of the acknowledgment.

On the issue of acknowledgment, the Fin24 piece did have a hyperlink to the Moneyweb article, and the question was whether this constituted sufficient acknowledgment or mention. The court held that it did, with the judge stating: "In my view almost every reader of the Internet will be familiar with the hyperlink." Yet, the fair dealing defence did not succeed because the copying had not been fair according to the judge. Factors considered include the fact that the article had been reproduced almost verbatim, and the fact that the Media24 piece had appeared a mere seven hours after publication of Moneyweb's article.

So, there had been copyright infringement in respect of one of the seven articles. Although Moneyweb also alleged that there had been unlawful competition, the court disagreed, repeating what many courts have said in the past – unlawful competition cannot be used as a catch-all for failed IP claims. Moneyweb got its interdict (injunction), but was only awarded a small portion of its legal costs. 

A decision that a hyperlink is a sufficient way of acknowledging source and authorship clearly has major implications for businesses such as news aggregators. But don't assume that copyright has become irrelevant  – get advice!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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