The Moneyweb versus Fin24 copyright case has media lawyers at multiple firms around South Africa working overtime for the respondents.
A lawyer from Norton Rose Fulbright SA, Likonelo Magagula, answers questions posed by The Media Online to clarify the issues at hand. She does not act for either party, and offers an independent view of the case.
What is your view of the Moneyweb vs Fin24 case. Is it legitimate?
The claim seems legitimate, on the face of it. In their papers, Moneyweb claims Fin24 has without authorisation reproduced seven of Moneyweb’s articles between the periods of July 2012 and July 2013. Whether it succeeds will depend on the facts.
Moneyweb says: It uses journalists and other platforms to generate original content. Its core focus is to generate unique original content. This business strategy demands major financial investment on Moneyweb’s part. It has to remunerate journalists who are full-time employees and pay for overheads etc.
On the other hand Fin24’s model is said to be based on publishing syndicated copies of content from sources such as Reuters, Bloomberg etc. “Syndicated copies” are copies which are distributed for free for purposes of pre-publication.
Whilst there is nothing wrong with Fin24’s approach, Moneyweb claims that, instead of using the other sources as a tool in collating material in order to augment its own stories, Fin24 appears to be copying content from other sources, including Moneyweb, and re-writing it as its own.
Fin24.com says it publishes content in line with “internationally accepted digital practices”. What would you say is internationally accepted digital practice, and how widespread it would be?
I am not aware of any internationally accepted publishing principles. It is possible Fine24 might be referring to the Berne Convention for the Protection of Literary and Artistic Works.
South Africa is signatory to this convention and so is the United Kingdom, the US, Australia and many others.
One could argue that the principles espoused by the Berne Convention are “internationally accepted digital practice”. Even so, it should be borne in mind that although South Africa is signatory to the Berne Convention, it has its own copyright law which has to be adhered to.
It is also possible that Fin24 is referring to the practice commonly known as aggregation. Aggregation refers to a service akin to that provided by the international online agency -Meltwater. Meltwater provides an online newspaper “clippings” service which provides brief extracts from newspaper articles, and links to the articles, against a subscriber’s search terms.
Is there a precedent, which you know of, in South Africa?
I am not aware of a similar case in South Africa involving copyright infringement in digital media. This is not surprising as the digital media is a fairly new phenomena.
In your view, why should online be different from print?
Online media is similar to print, but the content in the digital media is delivered to the end user / consumer differently from print media.
Due to the nature of digital media, the traditional principles underlying copyright law as regards copying and reproduction have become much more complex in online media. This has evinced the upsurge of copyright litigation in the United States and the United Kingdom.
The common thread in most of the cases is digital media. The cases deal with questions relating to browsing, caching, crawling of content and linking of online content.
The European Union Court of Justice is at the moment deliberating on similar issues in the case between Newspaper Licensing Agency (NLA) and Meltwater. At issue is whether the end user of a website requires a licence to view copyright-protected material.
The NLA argued successfully in the first instance and in the Court of Appeal – that the end-user requires a licence in order to view copyright protected the material via their internet browser. Due to the ramifications of this ruling for online businesses and end users the question has been referred to the EUCJ.
Another case on the issue is the 2006 case between Field v. Google Inc., 412 F. Supp. 2d 1106 – Dist. Court, D. Nevada 2006. Blake Field (“Field”) brought a copyright infringement claim against Google Inc. (“Google”). Field contended that by allowing internet users to access copies of 51 of his copyrighted works stored by Google in an online repository, Google violated its exclusive right to reproduce copies and distribute copies of the works. The court found in Google’s favour, holding that Google held an implied licence to reproduce and distribute copies of the copyrighted works at issue and that Field was estopped from asserting a copyright infringement claim against Google with respect to the works at issue
Someone close to the Moneyweb case told me they are “not fighting aggregation, but against copyright infringement”. Your view?
Reproducing copyright works without the owner’s authorisation may be unlawful. According to Moneywebs’ papers they are fighting against the unauthorized reproduction of their works.
The recent Associated Press vs Meltwater case was settled. But prior to that, Meltwater argued its use of AP content was covered by the “fair use doctrine” that allows copyrighted works to be used for “criticism, comment and news reporting”. But the Judge said Meltwater violated AP’s copyright by using excerpts from stories without a licence and redistributed them to Meltwater subscribers. Does this have parallels to the upcoming SA case?
I do not consider the issues in this case as being similar to those deliberated on the AP v Meltwater case. The services offered by Meltwater and Fin24 are not similar.
Even so, it can however be argued that there is similarity between these two cases in that they both deal with copyright, although the issue in Meltwater was whether browsing constitutes reproduction of works which therefore requires a licence from the copyright owner.
As far as I am aware Fin24 provides news articles. It does not offer aggregation services. As such the issue to be determined in this case is whether Fin24 has reproduced Moneyweb’s content without authorisation.
“This ruling makes it crystal clear that Meltwater wrongly used news content from AP to create its own content, while paying none of the costs associated with creating original news content,” said Gary Pruitt, AP president and CEO. “This is an important ruling for AP and others in the news business who work so hard to provide high-quality original news reports on which the public relies.” Your comment?
The ruling is important in that it has made it clear that copying, reproduction and distribution of copyright works in the digital space should be dealt with in the same as traditional copying / reproduction.
The facts of this case are not very different from the US Supreme Court case – “International News services v Associated Press” decided almost a century ago in 1918. In that case, the defendant gathered news from plaintiff’s earlier news articles and distributed the news to its members in the US, who then proceeded to publish the news in newspapers. Defendant was benefiting from the work generated by plaintiff’s skill and financial resources, without remunerating the plaintiff. The court held that this conduct amounted to unlawful competition and copyright infringement.
What would you like to see emerge from taking this case to court in term of digital publishing in South Africa?
This case will hopefully bring some clarity as regards what is allowable when it comes to copying or reproduction of content online.
What, in your view, are the weaknesses at present?
I have not studied the case comprehensively (Moneyweb’s founding papers were over 200 odd pages). In the circumstances I am not in a position to provide a view whether the case is strong or weak.
If there is anything else you would like to add, please do so. A complex business, so all insights welcome!
Countries worldwide are struggling to keep their copyright laws updated and aligned to better coincide with digital technologies. Due to the fast-moving pace of technological innovation, copyright law needs to be constantly evolving in order to allow for new exceptions to copyright infringement to encourage technological innovation.
It is essential that copyright laws are constantly kept updated to better coincide with digital technologies, in order to ensure free and fair competition. Third parties should not be allowed to unduly benefit from works generated through other’s skill, effort and financial resources of others without paying appropriate licence fees but the rapid evolvement of technology content cannot be unduly restrained.
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