The highly anticipated legal battle between Moneyweb and Fin24 kicked off in the South Gauteng High Court on Thursday.
Moneyweb has applied to the court for a declaratory order stating that the copying of seven of its articles in 2012 and 2013 by Fin24 was unlawful because it infringed on Moneyweb’s copyright and constituted unfair competition.
Fin24 strongly denies this.
Advocate Philip Ginsburg SC, acting for Moneyweb, started proceedings and argued that journalists’ work needs to be protected by copyright to incentivise publishers and journalists to continue with their important task.
Ginsburg argued that originality is determined by the efforts and talents employed to create the work, he said. He said threshold to determine originality is low.
The authors of all the articles, with the exception of one author who is deceased, have supplied affidavits stating that the articles are their original work, done as employees or contributors to Moneyweb.
Ginsburg also introduced a document that compares the original Moneyweb and corresponding Fin24 articles, which highlights the copied sections. He also read passages from these articles to the court to show the extent of the apparent copying by Fin24 of the Moneyweb articles.
See the comparison of Fin24 and Moneyweb’s articles:
Ginsburg also referred to Media24’s formal aggregation policy that determines that 24.com news websites such as Fin24, may copy up to 30% of a third party’s content, should rewrite the content, add additional information if possible and that a hyperlink must be included to the original article.
He said that in several of the seven cases before the court Fin24 did not adhere to its own policy and copied more than the allowed 30%, while several passages were also not rewritten.
“Fin24 took substantial parts of the articles from a quantitative and qualitative point of view and thereby infringed Moneyweb’s copyright.”
Ginsburg also referred to several supporting affidavits from senior editors and journalists from, amongst others, the Times Media Group, Independent Newspapers, Caxton, The Freelancers Association of South Africa and Daily Maverick, who clearly distanced themselves from this policy. They also strongly deny that this policy represents standard industry practice, as Media24 contends.
Ginsburg opposed an application by Media24 to strike off these affidavits, saying it has to be considered as part of a test whether Fin24.com’s conduct qualifies as “fair dealing”.
“Fair dealing” is a copyright defense, which allows you to take a small portion of another’s work for the purposes of further reporting on current events.
This section of the Copyright Act has never before been tested in South African courts and he will therefore rely on cases in the US and UK for guidance, Ginsburg said.
Advocate Cedric Puckrin, acting for Media24, spent most of the afternoon on the argument that Moneyweb, who had the evidential burden, failed to prove the originality of the articles.
He contended that Moneyweb did not show which parts of the articles were the journalists’ own work and not sourced from third parties. He said it is not enough for the authors to say they are original, they have to show what efforts they employed and which portions of the articles were the fruits of their labour and which originated from other sources. ‘It is then for the court to decide on the originality,” he said.
This is important in news articles that are often a compilation of contributions from different sources, he argued.
If it is determined that Moneyweb’s articles were copyright protected, one has to determine whether a substantial part was copied to prove the copyright was infringed. Puckrin said unless it is proven which parts are original; it cannot be determined whether a substantial part of the original word was copied.
Puckrin will continue with his argument on Friday.
The case is heard by Acting Judge Daniel Berger.