The much-publicised copyright infringement case between Moneyweb and Fin24 is finally heading to court and it is set to create an important legal precedent for copyright protection on news reports in South Africa. Moneyweb editor, Ryk van Niekerk, reports.
I filed my replying affidavit on behalf of Moneyweb last week, in response to Fin24’s defence against our initial application. The next stop is the South Gauteng High Court.
Moneyweb initiated the application in September last year, as we believe that Fin24 breached our copyright by unlawfully copying seven (it is now eight, as we have added another one to the list) Moneyweb articles between July 2012 and July 2013. It is however clear that this case is not only about these eight aggregated articles.
The outcome of the case could affect the future of journalism in South Africa.
Publishers are dependent on audiences to survive and the only way to attract audiences is through the publication or broadcasting of original content. It is expensive to do, but it is the key to building and retaining audiences. However, if, as we argue, the dominant digital news publisher in South Africa is allowed to free ride on these publishers’ investment in journalism to save costs, this incentive will disappear.
The problem is not unique to South Africa. A similar point was made in an editorial written by the New Republic as far back as 2011 where it was observed that if aggregation is unchecked, “we are going to wake up one day and discover that we are simply aggregating each other’s aggregation, because no one is any longer bothering to create original material”.
Moneyweb is not alone
Moneyweb is not alone in its fight against what we contend is online plagiarism and copyright theft. Editors representing more than 30 leading print and digital South African news titles, a former editor of a Media24 newspaper as well as the South African Freelance Association (Safrea) representing more than 350 members, have all signed affidavits that denounce the aggregation policy of 24.com, of which Fin24 is a part.
The publications and organisations which have supported Moneyweb are:
• Charmaine Naidoo on behalf of all titles within the Times Media Group;
• Karima Brown on behalf of all titles within the Independent Group;
• Ellis Mnyandu on behalf of Business Report, Independent Newspapers’ financial insert;
• Steven Motale on behalf of The Citizen;
• Branko Brkic on behalf of the Daily Maverick;
• Liza Albrecht, former editor of Rapport and former head of digital platforms for Afrikaans titles within Media24; and
• Clive Lotter on behalf of the freelance body Safrea.
These deponents represent a significant number of stakeholders in the South African media and they distance themselves from several statements relating to industry practice put forward by editor in chief of 24.com, Jannie Momberg, in his answering affidavit
One of the most contentious documents submitted is the 24.com aggregation policy. This policy is the blueprint of aggregation practices of 24.com and is followed by all titles within the 24.com stable, including Fin24 and News24. Fin24 also followed this policy when the eight Moneyweb articles were aggregated.
This policy is:
It is part of 24.com’s editorial policy to publish content aggregated from various sources.
When aggregating content, take note of the following guidelines:
1. Never use more than 30% of the original source
2. Rewrite all content
3. Where possible add in your own content and own information
4. Always credit the original source
5. Include a link to all original sources
This may seem like a simple policy, but it has dire consequences for the whole industry. We argue that what the policy does is permit a form of illegitimate and unlawful copying from third parties and it becomes in effect a licence to plagiarise. Moneyweb’s position on this policy has been seconded by the editors and representatives in their respective supporting affidavits.
In Momberg’s affidavit, it becomes clear how important this aggregated content, which represent 2.05% of the articles Fin24 published during the period, is for Fin24. These aggregated articles were very popular and attracted significant traffic to the website. Based on traffic figures provided by Fin24, no fewer than 11 of the 19 articles which received in excess of 10 000 page views each on the Fin24 website during the period, were aggregated from third parties. Another five were syndicated articles and the Fin24 content producers produced the remaining three.
Copyright in news and the magical hyperlink
It is not only the aggregation policy that is contentious. Fin24 also suggests some novel interpretations of the Copyright Act that if correct, may have dire consequences for journalism.
The first is the contention that there is no copyright in news reports. Again, it is not just Moneyweb that strongly disagrees with this, as appears from the affidavits of the editors and representatives who I have referred to. Anyone even remotely involved in media will know that it takes substantial creative expression and skill to produce news articles, not only from the journalist but also from production editors.
If Fin24’s view is correct, it would mean that any newspaper, magazine or website is free to copy the whole or majority of all news articles published by rival newspapers, magazines or on websites, and could do so without any form of attribution at all!
We think this would bring an abrupt end to original journalism in South Africa.
Another contentious view is that a hyperlink in a copied article, linking back to the original article, satisfies the fair dealing provision in the Copyright Act. This suggests it is permissible to copy content from a third party as long as there is a hyperlink back to it.
Again, we contend that this is not correct. A hyperlink is not a substitute for proper attribution. There are also a number of other criteria that also have to be looked at in deciding whether fair use is being made of someone else’s writing.
But the hyperlink argument goes even further.
In his affidavit Momberg says Moneyweb should be grateful for the click-through rates achieved from the eight “aggregated” articles as this rate was better than we would have “received via paid for advertising”.
This is somewhat presumptuous and, as we submit in our response, just plain wrong.
On average, only three out of every 200 visitors who read the aggregated Fin24 articles clicked on the hyperlink to read the original articles on Moneyweb.
This is an absolutely abysmal rate and is inconsequential to us. It also compares poorly with international benchmarks where news aggregators report click through rates in excess of 35%.
The reality is that Fin24 aggregates content in such a way that it is not necessary for a reader to read the original article. For example, in the Defencex article I am particularly unhappy about, only 75 people clicked through from the copied Fin24 article back to the original Moneyweb article. This is despite Fin24 receiving 11 431 page views on its story. This represents a click-through rate of 0.66%.
Limits of fair use
It is not Moneyweb’s position that anyone can maintain a monopoly on the news or a breaking story. Under the fair use principles developed in copyright law, a publication can republish information from another publication as long as it adheres to certain established criteria, which include transforming the original story, not taking qualitatively and quantitatively more than is necessary, not competing with the original work and equally importantly, acknowledging who the original source of the information is.
Only 24.com benefits, no one else
Momberg stated in his affidavit that in the 21st century of digital publishing, “the practice of sending out reporters to the scene of each event, trying to conduct interviews and generally trying to obtain all information first-hand, has become largely outdated and antiquated”.
This is certainly not the case. In our view, this criticism of the news gathering process is nothing more than an attempt to justify the re-use of content created by other publishers without the editorial investment. If this practice is allowed to continue on the scale that it does, we believe it will reduce the incentive for all publishers to invest in original content, and then everyone in South Africa will lose.
It will not only be publishers that suffer, but also the public. South Africa needs a strong media, and if this aggregation model of the dominant publisher is allowed to continue, it will have an extremely negative impact on the industry.
This will be an interesting case indeed. It is now up to the court to decide.
See the Moneyweb Fin24 Copyright website for information pertaining to the case, media coverage and documents.
Ryk van Niekerk is editor of Moneyweb. Follow him on Twitter @ryk_van_niekerk. This story was first published on Moneyweb and is republished here with the permission of the editor.