The concept of ‘fair usage’ lies at the heart of the upcoming battle between digital publishers Moneyweb (a subsidiary of Caxton and CTP Publishers and Printers) and Fin24 (backed by Media 24).
Moneyweb has announced its intention to sue Fin24 for what it calls “systemic plagiarism on an industrial scale”.
It accuses Fin24 of copyright infringement and plagiarism and says Fin24’s actions constitute the “delict of unlawful competition of Moneyweb”. Moneyweb wants a court to order Fin24’s publication of articles – many listed in its 63-page founding affidavit – declared unlawful. It wants Fin24 indicted from continuing to publish its stories and the ones already published removed from its website, held liable for damages and for it to be responsible for the costs of the application.
Fin24, in response, has “strongly” denied the charges. It says it will “vigorously defend” Moneyweb’s application launched in the Gauteng South High Court. It argues that it at no time infringed copyright or pretended to pass off the work of others as its own. “Fin24 states that clear attribution is and was used at all times when elements of content are used from third party sources. All the 24.com platforms, including Fin24, publish content in line with internationally accepted digital practices and it is part of Fin24’s content mix to publish relevant financial news from across the industry where this is in the public interest,” it said in a statement.
24.com CEO Goeff Cohen says the case could “set a legal framework for fair use and content aggregation – a practice that is as old as the free media and used by every single media organisation globally. We look forward to this case establishing precedent”.
Moneyweb editor, Ryk van Niekerk, says his website is one of the “leading online sources of business, financial and investment content in South Africa”. Its “content strategy is to provide excellent, unique and original business, financial and investment content to the Moneyweb community”. It breaks news in the online business media sector, provides in-depth analysis of trends, economic data, JSE listed company results and corporate business. “Moneyweb’s editorial approach under my editorship is based on the generation of unique and original business, financial and investment content for its various platforms,” Van Niekerk says.
He says this approach is “significantly” different to that of its competitors, which use a model of predominantly publishing syndicated copy from wire services and press releases, a much less costly approach. “In this environment, third party material is published as is or merely re-purposed without a ‘journalist’ ever having to leave his or her chair,” he says.
This, of course, means these sites often use the same copy, leading to a lack of differentiation. He accuses Fin24 of circumventing this “difficulty” by using original material generated by publishers such as Moneyweb. To underline his argument, he used an interview by The Media Online with Fin24 editor, Fadia Salie.
Glenda Nevill’s question: It’s a big site, which demands a constant flow of content. Are you largely reliant on wire copy or aggregating your content from 24.com sites? How do you feed the site with top end copy?
Fadia Salie’s answer: We know our users best and try to give them the best content that they can derive value from. So, yes we do rely on the wires, but we also aggregate not only from the 24.com sites, but also other news sites– stories we feel our users could benefit from.”
So, does Moneyweb have a case? Should Fin24 answer this case in court? The Media Online asked some experts to shed light on the case, and its possible outcomes.
Anton Harber, professor of journalism at Wits University, says there is value in testing the limits of ‘fair usage’ “in relation to the internet, as our law is based on old media and has not adjusted to the different demands of new media”.
Harber believes as yet, there is no “internationally accepted digital practice”, as put forward by Fin24 in its initial response to Moneyweb’s application. (Fin24, in response to questions from The Media Online, says it is working on an answering affidavit and is unable to to elaborate on its case at present.)
“We have a lot of borrowing, thieving and plagiarism as all of this is made much easier on the internet. I share with Moneyweb the frustration that those who invest in original content often find their material ripped off by the unscrupulous,” he says.
“If we are to find a new business model for journalism in the internet age, we have to accept that original news and information has a value and must be paid for. On the other hand, it is almost impossible to ‘own’ news and hold on to it indefinitely. Moneyweb does also gain from the publicity and credibility of being quoted by Fin24. It is a question of what is ‘fair usage’ and what constitutes adequate acknowledgement of other peoples’ material. Hopefully this case will clarify these issues.”
Jude Mathurine, new media lecturer and co-ordinator at Rhodes University’s school of journalism and media studies, says Fin24 does have a case answer, one that “media organisations and bloggers around the country should watch with particular interest as it has a bearing on what has become commonplace but may be (in some circumstances) unlawful practices involving the duplication, publishing or reuse of substantial portions of copyrighted material on online and other platforms”.
Mathurine refers to a case in 2010 in which AFP and the Washington Post were found to have infringed on the work of a photographer, David Morel when they used his pictures taken in the aftermath of the Haiti earthquake. “The agencies swiped his pictures from Twitter but the judge found that just because content is public does not mean that it is not copyrighted. While Twitter’s terms of service allows users to retweet content, it did not allow users to willy-nilly copy content to other platforms without the permission of the copyright holder,” Mathurine says.
“Newspaper titles and online media that use copyrighted content (this includes but is not limited to private but publicly available UGC and commercial media content) without permission or outside of the conditions established for their legitimate use (such as embedding) or fair use provisions in local copyright law,” he says.
“If a party uses a substantial amount of a copyrighted work (under SA’s Copyright Act of 1978, the limit is 10%), especially where the new work can be regarded as a replacement for the original, there is justification for claiming a breach of copyright.”
Harber argues that with old media, “if you broke a story you could own it for at least one news cycle and the cycle was often 12 hours. Now another site can steal your story and run it within minutes which means you can’t own it for any time at all. Why invest in a story if you will only own it for a few minutes?” The law, he says, is outdated and “does not take into account the speed and ease with which material can be stolen on the internet”.
Which is why this case is deemed pivotal in in terms of setting a precedent in South Africa.
In the US, Judge Denise Cote found in the Associated Press vs Meltwater News case that news aggregation website, Meltwater, infringed the wire service’s copyright and could not claim it was protected by fair use when it sold excerpts of AP articles to its paying customers. “Through its use of AP content and refusal to pay a licensing fee, Meltwater has obtained an unfair commercial advantage in the marketplace and directly harmed the creator of expressive content protected by the Copyright Act,” Cote wrote in her judgment.
AP’s lawyer, Elizabeth McNamara, said the “most important takeaway from the decision is that Meltwater and others for years have maintained that news that is freely available on the internet can be freely taken and commercially sold”. McNamara says Cote’s decision “rejected that argument and recognises that Meltwater – and presumably others – can’t free ride on costly newsgathering.”
Harber agrees. “This supports my point that we have to recognise the value of original news reporting and not allow it to be abused,” he says.
AP’s CEO and president, Gary Pruitt, said the ruling made 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”. He said the judgment was important for AP and others in the news business “who work so hard to provide high-quality original news reports on which the public relies”.
Mathurine points out that in his view, the “legitimacy of the Moneyweb claim derives from the online publisher’s considerable investment in content e.g. the R800m DefenceX Ponzi scheme investigation where such content is reproduced (even with attribution) but Moneyweb fails to accrue (in its estimation) the benefit from its journalism in terms of traffic since Fin24, which is tied to the News24, the country’s most popular local online site, would absorb its traffic”.
A source close to the Moneyweb case told The Media Online they were “not fighting aggregation, but against copyright infringement”.
“All media are involved in aggregation and curation. Journalists curate facts, commentary and materiel from books, sources, reports, documents, databases and the like to package these into reports of current or topical interest – into articles or videos or bulletins,” says Mathurine. “It should be pointed out that reproduction of content for purposes of news reporting is permitted by South African copyright law’s fair use principles – but once again the issue of substantiality applies. I believe this to be a case that is against copyright infringement, which will have the effect of offering clarity to online and traditional publishers of the limits and challenges of online aggregation and curation.”
He says while there is no legal precedent in South Africa there are “precedents of a kind”.
Mathurine says in the digital networked age, “media readily practice churnalism (reproduction of media releases and news agency copy [among others] in print or broadcast with little to minor edits) resulting in content (sometimes even bylined) that may be often promotional, partisan or commercial in nature and which consequently erodes journalistic values of fairness, balance and independence. Sites like Artslink will often do this.
“Online content editors may also curate portions from one or even multiple sources for blog posts, online videos or news or feature reports. This in itself isn’t a problem. The problem occurs where there is no fair use justification; where substantial amounts of an original is used; where there is no acknowledgement of the paternity of the original content through attribution or links”.
As Harber says, the case could finally set a precedent for “clear and reasonable rules for ‘fair usage’ in the internet age”.
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