IN

THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)



In the matter between:


MONEYWEB (PTY) LIMITED

and

MEDIA24 LIMITED


FADIA SALIE

Case No: 13/31575

Applicant

First Respondent

Second Respondent

RESPONDENTS HEADS OF ARGUMENT

INTRODUCTION AND APPROACH


1.
The applicant seeks declaratory orders against the first respondent and the second
respondent for alleged copyright infringement and/or unlawful competition in respect of
seven, increased to eight,1 news articles published by the first respondents on-line
financial website (Fin24) of which the second respondent is the editor. For convenience,
we refer to the applicant as Moneyweb and to the first and second respondents together
as Fin24.

An amendment to the notice of motion, to add an additional news article, was effected after the replying
papers were delivered.

2.

The applicant also seeks the removal of the articles in question from Fin24s website, as
well as a damages inquiry at proceedings it intends instituting in due course should its
declaratory orders succeed.

3.

At the outset, we point out that the commencement of the preparation of these heads of
argument was on 5 January 2015 some six weeks before the receipt of Moneywebs
heads of argument. The directive by the deputy Judge President demanded a filing by
Fin24 within the space of a single week. In this single week, it has been simply impossible
to deal point-for-point with every issue and argument raised by Moneyweb. We say,
however, that most of them have been dealt with holistically as far as possible but any
failure to address any specific issues or arguments in these heads should not be construed
as an acceptance of the argument, which will be rebutted in oral argument at the hearing.

4.

In these heads of argument, we shall develop Fin24s argument in terms of the following
scheme:

4.1.

First, in Part A, we summarise its defences in broad and essential terms to

contextualise our submissions which follow.

4.2.

Second, in Part B, the relevant legal principles applicable to each defence are set
forth, together with reference to appropriate and instructive foreign jurisprudence.

4.3.

Third, in Part C, we analyse the articles in issue in light of the applicable copyright
legal principles, and the case brought against the respondents generally in light of
the applicable principles of unlawful competition.

4.4.

Finally, in Part D, we conclude with the form of order sought, together with a brief
summary of the reasons relied upon by the respondents.

5.

Before commencing with a summary of Fin24s defences, it is opportune to make some

submissions on what this application is not about.

5.1.

First, much is made in Moneywebs papers (and in its heads of argument) of its
allegations that Fin24 is in breach of various professional codes applicable to the
media and journalists, concerning how those codes consider journalism should be
done. These are entirely irrelevant. This is an application about alleged copyright
infringement in respect of the press articles in issue which if proved, so Moneywebs
contention runs, entitle it not only to a declaration of copyright infringement but
also to a declaration of unlawful competition against Fin24. As such, the only inquiry
is whether there is actionable copyright infringement and unlawful competition, and
that falls to be determined with reference to the relevant provisions of the Copyright
Act 98 of 1978 (the Act) and the common law of unlawful competition, not to any
notions of allegedly proper journalistic practice (which is all inadmissible hearsay
evidence, in any event, for the reason that no confirmatory affidavits have been filed
on behalf of the professional codes concerned). The personal (or professional) views
of editors of other publications are likewise irrelevant: Fin24 is not facing a
disciplinary hearing for alleged breach of codes on journalistic practice. Moreover,
the editors views do not confirm that Fin24 in any of the articles in issue sourced
from Moneyweb (as opposed to other sources) up to anywhere near the threshold of
30%.

5.2.

Second, flowing from the first, this is not an application directed at the validity (or
otherwise) of Fin24s so-called aggregation guidelines or its editorial policy
generally. This is an application which concerns at most eight discrete press articles.
It is not enough for Moneyweb to point to Fin24s aggregation guidelines or
editorial policy and then, based on these, to contend that because in Moneywebs
estimation these are flawed, Fin24 must have committed copyright infringement in
respect of the articles in issue or otherwise on some basis be competing unlawfully
with Moneyweb. It is for Moneyweb to establish originality, to establish
infringement by Fin24 and to demonstrate that the infringement is substantial and
to do all these things in respect of each of the articles in issue. We return to this,
and to the issue of onus, at the appropriate place below.

A.

FIN24s DEFENCES: SUMMARISED

6.

Fin24s defences are summarised in paragraph 5 of its answering affidavit.2

7.

With reference to these, Fin24s defences are the following:

7.1.

First, each of Moneywebs articles in issue are themselves sourced from external
third parties and Fin24 has sourced only a part of its own articles from Moneyweb. It
follows from this that it was incumbent upon Moneyweb to demonstrate three
things: first, the parts of its article in each case which are allegedly original; second,
that those parts are qualitatively substantial to each article in issue; and third, that
Fin24 reproduced those parts in its corresponding article. Mindful that each of

Record pp.263-266.

Moneywebs articles in issue is a news item of some kind itself derived from an
external source (over which Moneyweb cannot claim originality without more), the
first of the three things which Moneyweb was required to demonstrate is
particularly significant to these proceedings.

7.2.

Second, related to the first, as the law of copyright is a technical subject, it was
incumbent upon Moneyweb both to make the necessary allegations and to establish
these with the required evidence.

7.3.

Third, the above notwithstanding, should the original portions of each Moneyweb
article in issue be on some basis identifiable and identified (which is denied), the
original portions sourced from Moneyweb by Fin24 in each case are neither
quantitatively nor qualitatively significant enough (especially and notably the latter)
to found infringement: Fin24s articles would not be qualitatively reduced (and their
meaning thus impaired) were the portions sourced from Moneyweb removed.

7.4.

Fourth, the above notwithstanding, should the relevant parts of Moneywebs articles
in issue be found to be original and the corresponding Fin24 article be found to be a
substantial qualitative copy, the Act provides for exceptions from copyright
protection of such literary works, in sections 12(1)(c)(i) and 12(8)(a). We return to
these exceptions further below: we shall show that Fin24 has met the provisions of
fair dealing in its use of Moneywebs first articles on each subject (section
12(1)(c)(i)), that each article is fundamentally an article published in a newspaper or
periodical on [a] current economic, political or topic and that some of

Moneywebs articles consist of news of the day that are mere items of press
information (section 12(8)(a)).

7.5.

Fifth, any alleged plagiarism, apart from being denied by Fin24, is not a cause of
action and, relatedly, neither is conduct not prohibited by the law of copyright a
form of unlawful competition on some residual, catch-all basis. The cases relied
upon by Moneyweb to the contrary are wholly distinguishable on the facts: there is
no basis on the facts before this Court to uphold an extension of the delictual action
of unlawful competition in this matter.

8.

It follows from the above summary that Moneyweb has omitted a primary issue for
determination identified in paragraph 11 of its heads of argument: interposed between
the two primary issues it provides, is the issue as to whether (if Moneyweb succeeds in
establishing originality) Fin24 has indeed copied or adapted an original part and further, if
so, whether any such copying was substantial. This omission is surprising on Moneywebs
part, for it accepts in paragraph 31 of its heads of argument that substantiality is a
requirement in terms of section 1(2A) of the Act and in paragraph 35 of its heads of
argument that reproduction of a substantial part is one of the questions before this
Court. The fact that Moneyweb contends (in paragraph 9 of its heads of argument) that
Fin24 has copied Moneywebs news story [which] is not therefore in dispute does not
answer this issue on which it bears the onus: mere copying by reproduction on its own
does not meet the test for infringement the copying must also be substantial and that
inquiry falls to be determined in terms of whether the copying occurred in respect of an
original part. We therefore specifically submit that the contention in paragraph 32 of

Moneywebs heads of argument that [Moneyweb] assumes that the question of an

infringing act is not in dispute is not a justified assumption: the substantiality requirement
in terms of section 1(2A) is very much in dispute. We return to the substantiality
requirement further below.

9.

Before setting forth the relevant legal principles, we interpose the following considerations
which have a substantive effect in this matter:

9.1.

First, in paragraph 2 of the notice of motion, Moneyweb seeks an interdict against

Fin24 from continuing to publish the offending articles and are directed to remove
the articles [from Fins24s website]. Moneyweb justifies seeking this order,
according to its heads of argument, on the basis that the infringement is ongoing as
the articles concerned continue to be accessible on the Fin24 website (para 2). This
relief sought loses sight of the fact that reproduction (in the form alleged of copying)
is not an on-going act: it is a discrete act, namely the act of reproduction by copying.
Publication, however, is only an infringement if the work was hitherto
unpublished.3 There is no such allegation made by Moneyweb in this case. The
alleged infringement (in this case in the form of copying) if any be shown occurred a
long time ago. Although third parties may be accessing the allegedly-infringing
works (using them, in other words) there is no on-going reproduction, which is the
sole issue for present purposes. As it is trite that an interdict is not a competent

Section 6(b) of the Act.

remedy to right historical wrongs,4 the interdict sought in paragraph 2 is

incompetent for this reason.

9.2.

Second, the mere fact that Fin24 may bear the onus to establish its statutory
defences, does not dislodge the application of the so-called Plascon-Evans test
applicable to the resolution of disputes of fact on motion: irrespective that the onus
may be on Fin24 on any defence it raises based on Section 12 of the Act, the rule in
Plascon-Evans still applies.5

B.

10.

RELEVANT LEGAL PRINCIPLES

Original literary works (which include tables or compilations) are eligible for copyright
protection in terms of section 2(1)(a) of the Act. There is, however, no definition of
original or originality in the Act. The SCA appears to have accepted the definition of
original (even though it was not necessary for the purpose of the case before it to decide
whether the works in question were original) as:6

(A)n original work must be the product of an author's exercise of skill and judgment.
The exercise of skill and judgment required to produce the work must not be so trivial
that it could be characterized as a purely mechanical exercise. While creative works
will by definition be original and covered by copyright, creativity is not required to
make a work 'original.
4

Stauffer Chemicals Chemical Products Division of Chesebrough Ponds (Pty) Ltd v Monsanto Company 1988
(1) SA 805 (T) at 809F; Philip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another 1991 (2) SA
720 (A).
5
Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A); Pennello v Pennello
(Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA) at paras [39] and [40]; Ngqumba en 'n
Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v
Staatspresident en Andere 1988 (4) SA 224 (A) at 259C-263D.
6
CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 at para 25, quoted and accepted in
Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) at [35]-
[37].

11.

The recognition by the SCA in Haupt (above) of skill and judgment as the yardstick for
originality removes consideration of the sweat of the brow approach,7 for to elevate the
latter above the former would result in the author being overcompensated for his or her
work: for the author merely to show industriousness is not enough.8 The primary object of
copyright is thus not to reward the labour of others.9 Copyright protects originality not of
thought itself, but the expression of thought.10 Or, in different terms, copyright law
protects foxes better than hedgehogs.11

12.

There is a reason why pure industriousness or sweat of the brow is not (or at least no
longer) the test for originality. There is a public interest in the production and
dissemination of intellectual creations, which is a public goal independent of recognising
and rewarding creative authors.12 This is not to say that actual time and effort expended
by the author is of no consideration (it remains a material factor to consider): While it is
true that the actual time and effort expended by the author is a material factor to consider
in determining originality, it remains a value judgment whether that time and effort
produces something original (our underlining).13

Jettisoned in CCH Canadian Ltd (above) at para [24], as accepted in Haupt.

CCH Canadian Ltd (above) at para [23].
9
Feist Publications Inc v Rural Telephone Service (US Supreme Court) 499 U.S. 340 (1991) at 349-350.
10
University of London Press Ltd v University Tutorial Press Ltd (Chancery Division) [1916] 2 Ch 601 at 608-
609. See, too, Kalamazoo Division (Pty) Ltd v Gay [1978] 2 All SA 488 (C)
11
Designers Guild v Russell Williams [2001] 1 All ER 700 (HL) at 706.
12
Thberge v. Galerie dArt du Petit Champlain (Supreme Court of Canada) [2002] 2 SCR 336; 2002 SCC 34 at
paras [31]-[32].
13
Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (SCA) at 649I.
8

10

13.

The amount of skill and labour (or judgment) required to render a work original is a matter
of degree: it depends upon the facts of each case.14 Applied to the present matter, the
amount of professional skill and labour expended on the creation of an article in issue as
borne out by the facts is determinative of not only whether the work is original, but in
which part(s) the qualitative essence of the factual literary work lies.

14.

Copyright is a technical subject:15 originality is not presumed and must be shown to exist by
any applicant alleging subsistence of copyright.16 Facts must be placed before the court17
demonstrating the work in question as the product of the authors skill and judgment18
such that the legal conclusion that the work is original may be drawn: it is a matter of
degree.19 In particular, [w]here a work embodies existing subject matter the court must
decide whether its author has expended sufficient independent skill and labour to justify a
claim that the work is original. . Since novelty is not a requirement this test is essentially
a subjective one and goes to how the author went about creating his work albeit that it may
be similar to other works.20 It is therefore incumbent upon an applicant to show what
portions of the work are original and which are not21 all the more so, we submit, in

14

National Soccer League v Gidani [2014] 2 All SA 461 (GJ) at para [61]; Kalamazoo Division (Pty) Ltd (above)
at 494.
15
Memory Institute SA CC t/a SA Memory Institute v Hansen and Others 2004 (2) SA 630 (SCA) at para [5];
Payen Components SA Ltd v Bovic CC and Others 1995 (4) SA 441 (A) at 450F-G; Paramount Pictures
Corporation v Video Parktown North (Pty) Ltd 1983 (2) SA 251 (T) at 259H-260D.
16
Haupt t/a Soft Copy (above) at paras [35]-[36].
17
Video Rent (Pty) Ltd and Another v Flamingo Film Hire 1981 (3) SA 42 (C) at 46F-H; Vagar (t/a Rajshree
Release) v Transavalon (Pty) Ltd (t/a Avalon Cinema) 1977 (3) SA 766 (W) at 775C. See generally OH Dean
Handbook of South African Copyright Law 11.1.2.
18
Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A) at 25D-I.
19
Sure Travel Ltd v Excel Travel (Pty) Ltd and Others 2004 BIP 275 (W); Kalamazoo Division (Pty) Ltd v Gay
[1978] 2 All SA 488 (C). See, too, the House of Lords decision in Cramp & Sons Ltd v Frank Smythson Ltd
[1944] AC 329 at 340, where Lord Porter held that [w]hether enough work, labour and skill is involved,
and what its value is, must always be a question of degree.
20
OH Dean op cit 1-22.
21
Pyromet (Pty) Ltd v Bateman Project Holdings Ltd [1998] 699 JOC (W) at 702-703.

11

instances of news reports which, by their nature, contain mainly information of a public
nature.

15.

It follows that that it is not enough, for the conclusion of originality to be drawn, simply for
the applicant to have the author testify that in his or her opinion the work is original and
required independent effort, skill and expertise to write: the author must state the
necessary facts sufficient to demonstrate that the work in question is indeed the product of
the authors skill and judgment. So, too, should the author identify especially in cases of
news reports which parts are his or her own, and which parts are words, phrases, ideas,
facts and opinions of others.

16.

Copyright is infringed by anybody who, not being the owner or not holding a licence from
the owner, does or causes another to do in the Republic any of the acts restricted to the
owner (section 23(1)). The acts restricted to the owner are those listed, in regard to
literary works, in section 6, the essential restricted acts for present purposes being
reproducing the work in any manner or form (sub-section (a)).

17.

There is a fundamental difference between use and reproduction:22 the former is not
an infringement of copyright, whereas the latter two are. The distinction is well-illustrated
by the learned authors of Copyright at 7-51:23

22

In these circumstances, we submit that the interdict sought in paragraph 2 of the notice of motion is
misplaced: copyright protection is alleged by Moneyweb not on the basis of unauthorized publication but
instead on the basis of unauthorized copying or adapting.
23
Copinger and Skone James Copyright 16th ed 2011. See, too, Board of Healthcare Funders v Discovery
Medical Scheme and Others (unreported judgment of the North Gauteng High Court dated 15 November
2012 under case number 35769/2010 per Kollapen J) at [39].

12

A person may therefore use a work such as a directory to contact the listed names
as many times as he wishes. If, however, in the course of doing so or afterwards he
writes down or makes some other record of the substantial amount of the
information obtained from the plaintiffs work, then he is liable to infringe. (our
underlining)

18.

The test for copyright infringement has been stated thus:24

it is not necessary for a plaintiff in infringement proceedings to prove the

reproduction of the whole work: it is sufficient if a substantial part of the work has
been reproduced. To 'reproduce' within the meaning of the Act means to copy and in
order for there to have been an infringement of the copyright in an original work it
must be shown (i) that there is sufficient objective similarity between the alleged
infringing work and the original work, or a substantial part thereof, for the former to
be properly described, not necessarily as identical with, but as a reproduction or copy
of the latter; and (ii) that the original work was the source from which the alleged
infringing work was derived, ie that there is a causal connection between the original
work and the alleged infringing work, the question to be asked being: has the
defendant copied the plaintiff's work, or is it an independent work of his own? (See
Francis Day & Hunter Ltd and Another v Bron and Another [1963] Ch 587 at 618, 623,
indirectly referred to with approval by this Court in the unreported case of Topka v
Ehrenberg Engineering (Pty) Ltd 30 May 1983).

19.

Reproduction (by which is meant copying) for the purposes of section 23 is satisfied
whenever there has been a substantial copying of the work in question.25 And by
substantial is meant that

quality not quantity takes the test. It has repeatedly been held that substantial in
this connection relates much more to the quality of what has been taken than to the
quantity. .... Thus, if so much is taken that the value of the original is sensibly
diminished, or that the labours of the original author are substantially, and to an
injurious extent, appropriated by another, that is sufficient, in law, to constitute a
piracy pro tanto. In deciding questions of this sort, regard must be had to the
nature and objects of the selection made, the quantity and value of the materials
used, and the degree to which the use may prejudice the sale, or diminish the profits,
24

Galago Publishers (Pty) Ltd and Another v Erasmus 1989 (1) SA 276 (A) at 280B-D.
Payen Components SA Ltd (above) at 451D; and see, too, Newspaper Licensing Agency Ltd v Marks and
Spencer Plc [2001] UKHL 38 the speech of Lord Hoffman at para 19.

25

13

direct or indirect, or supersede the objects of the original work. It may be relevant to
consider whether there has been an animus furandi on the part of the defendant in
the sense of an intention on the part of the defendant to take for the purpose of
saving himself labour. Many mixed ingredients enter into the consideration of such
questions. In short, the question of substantiality is a matter of degree in each case
and will be considered having regard to all the circumstances. Generally, it is not
useful to refer to particular decisions as to the quantity taken.26 (our underlining)

20.

In the 16th edition of Copyright the authors at 7-28 say this:

The test [for substantial part] has been put in a number of similar ways. Has the
infringer incorporated a substantial part of the independent skill, labour, etc
contributed by the original author in creating the copyright work? Has there been a
substantial appropriation of the independent labours of the author? Has there been
an appropriation of a part of the work on which a substantial part of the authors skill
and labour was expended? Has there been an over-borrowing of the skill, labour and
judgment which went into the making of the claimants work? Has the defendant
made a substantial use of those features of the claimants work in which copyright
subsists? (our underlining)

21.

The authors of the 16th edition of Copyright continue at 7-30 (p.441), as regards the
meaning of substantial copying, as follows:

The quality or importance of what has been taken is much more important than the
quantity. The issue thus depends therefore not just on the physical amount taken,
but on its substantial significance or importance to the copyright work, so that the
quality, or importance, of the part is frequently more significant than the proportion
which the borrowed part bears to the whole. . Quality and importance must
therefore be understood in terms of the features of the work which made it an
original work in the first place. It follows that the quality relevant for the purposes of
substantiality in the case of a literary work refers to the originality of that which has
been copied. (our underlining)

26

Copinger and Skone James Copyright 12th ed at 8-26 and 8-27, quoted with approval in Payen Components
SA Ltd (above) at 451J-452C. See, too, the 16th edition of Copyright (ibid.) at 7-28.

14

22.

This point is further made by the authors of the 4th edition of The Modern Law of Copyright
and Designs at p.82 in the following way:27

As soon as a situation arises where not all the work has been copied, or where
imitation is not exact, the court has to decide whether what the defendant has
taken is a substantial part; and the answer to that question depends at least in
part on the degree of the originality of the part that is taken. (our underlining)

23.

The underlined words in the above three passages quoted are critical, we submit: whatever
the amount of Moneywebs article (in each case) used by Fin24, it is the originality of the
parts used which is relevant to the inquiry into whether there has or not been any
reproduction for purposes of the infringement inquiry. If the parts used no matter how
large in quantity of words were not the original result of the applicants independent skill,
labour and expertise and were an essential part, there can be no basis for a finding of
infringement even if reproduction of those parts is clearly established. Similarly, a value
judgment must be exercised on whether the material in which copyright is claimed
constitutes a work or is too trivial to merit protection.28

24.

It follows that originality of the parts used from the source work must first be found before
any inquiry into actionable reproduction and infringement can take place. And in this
regard, on the legal basis submitted above, the onus is on an applicant to demonstrate, by
placing facts before the court, that the parts used by a respondent are the product of the
authors own skill and judgment: it is insufficient for an applicant simply to allege that the
work as a whole is original and that skill and judgment were expended.

27

Laddie, Prescott & Vitoria The Modern Law of Copyright and Designs 4th ed 2011.
Accesso CC v Allforms (Pty) Ltd [1998] 4 All SA 655 (T) at 668.

28

15

25.

Thus:

25.1. Where the parts used are merely a commonplace arrangement of ordinary words or
well-known data,29 these parts would not be original, accordingly not susceptible
to copyright protection, and therefore their reproduction (even in very large
quantity) would not amount to copyright infringement. This is a different inquiry
from testing whether arrangements of ordinary words were devised using skill and
judgment such that the entire work may be considered original for that reason, as
opposed to the mere arrangements of ordinary words on their own (which may
not be original).

25.2. A reason for excluding copyright protection in this way from ordinary words, data or
facts (which could include news reporting) is that ordinary words, data and facts by
their nature have to be expressed either in one way (or in at least a limited number
of ways) and have necessarily to be accompanied by other facts to give them any
sensible meaning.30 Certain arrangements of words can therefore only be expressed
in a limited number of ways such that the resultant selection is commonplace:31 this
makes the arrangement of words unoriginal (no skill or judgment is required for the
arrangement for the reason that to be intelligible and useful the words in question
must not only all appear, but also in a specific, non-variable order), they would not
therefore qualify for copyright protection and accordingly there can be no
29

Biotech Laboratories (Pty) Ltd v Beecham Group Plc and Another 2002 (4) SA 249 (SCA) para 9, relying on
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 (HL) at 469B-E.
30
Harper & Row Publishers Inc v Nation Enterprises 471 US 539 (1985) para 98-99.
31
Such as, for example, in the appointment pages of a diary: Waylite Diary CC (above) at 653B-C. Or in a
commentary to revenue legislation: Juta & Co Ltd and Others v de Koker and Others 1994 (3) SA 499 (T) at
505D-J. See, too, G A Cramp & Sons Ltd v Frank Smythson Ltd (House of Lords) [1944] AC 329 at 329-340.

16

suggestion of any infringement if a third person were to repeat them in that same
arrangement. In arrangements of this kind, [t]o secure copyright for this product it
is necessary that labour, skill, and capital should be expended sufficiently to impart to
the product some quality or character which the raw material did not possess, and
which differentiates the product from the raw material.32

25.3. The rationale for not recognising the requirement of originality in these
circumstances (thus denying copyright protection) is to be found in copyright laws
emphasis on the protection of original expression of information,33 rather than on
any restriction on the dissemination of information.34

25.4. The above arguments expose the mischaracterization by Moneyweb, in paragraphs

18 to 20 of Moneywebs heads of argument, of Fin24s position expressed in
paragraph 5.1 of its answering affidavit (record p.263). Fin24 does not contend for
any absence of copyright in the expression of news, but instead in the underlying
facts contained in that expression.

32

Macmillan & Co Ltd v Cooper (Privy Council) (1923) 40 TLR 186 at 188, which was a case concerning
university textbooks which contained excerpts from existing material together with additional notes for
students.
33
Jacana Education (Pty) Ltd v Frandsen Publishers (1996) JOC 624 (T) at 623: The test is not whether the
information was utilised by the respondent but whether its presentation has been reproduced or copied.
(our underlining)
34
Ashdown v Telegraph Group Ltd [2002] Ch 149 CA; Laddie Prescott & Vitoria The Modern Law of Copyright
and Designs vol I (4th ed 2011) 102-103. See, too, Toro Co v R & R Products Co 787 F2d 1208 (8th Cir 1986)
at 1212 and the US doctrine of merger: as: Under the copyright law doctrine of merger, a close cousin
to the idea/expression dichotomy, copyright protection will be denied to even some expressions of ideas if
the idea behind the expression is such that it can be expressed only in a very limited number of ways. The
doctrine is designed to prevent an author from monopolizing an idea merely by copyrighting a few
expressions of it.

17

26.

These broad principles find particular application in the dissemination of news, which may
largely consist of articles containing commonplace arrangements of ordinary words or well-
known data. We point out that articles of this kind would be exempt from copyright
protection irrespective of the provisions of section 12(8)(a) (news of the day that are mere
items of press information). It is only once the articles in issue pass the threshold of
originality (and are thus afforded copyright protection by the Act) and a qualitatively
substantial reproduction in respect of the original portion(s) has been found that the
second-stage inquiries under section 12 can commence into whether they are nevertheless
exempt from copyright protection as contemplated by that statutory provision.

27.

In paragraph 25 of Moneywebs heads of argument, it is contended that news articles

should be treated no differently, outside the provisions of section 12 of the Act, to any
other literary works. This is correct, and indeed we advance this as the very nub of our
argument, namely that news articles must meet the threshold test of originality as is the
case with every other copyright work. As a matter of fact (not law) news articles which
comprise a rendition of facts and data will only be adjudged to be original if the expression
transcends the mere rendition of facts and data. The same would apply, for instance, to
the configuration of a diary (Waylite Diary CC para 25.2 above) or a commentary on a
statute (Juta & Co above, similarly).

28.

Insofar as there is a suggestion in Moneywebs heads of argument (para 21) that it engages
in research-based original journalism, this is simply wrong. None of the Moneyweb
articles in issue could qualify as research-based original journalism, as that term is
understood, properly interpreted. Each of the articles is simply reporting of the news.

18

Indeed it is temerarious of Moneyweb to suggest that Moneywebs articles in issue could

on any basis qualify as research-based original journalism. Therefore, to contend (as
Moneyweb does) that the public interest [in these circumstances] generally outweighs the
public interest in news dissemination in these circumstances, is unjustified: in matters of
news dissemination (as opposed to research-based original journalism), the public
interest ought to be at the forefront of considerations of appropriateness.

B.1

29.

Section 12(8)(a)

It is in these terms:

No copyright shall subsist in official texts of a legislative, administrative or legal

nature, or in official translations of such texts, or in speeches of a political nature or
in speeches delivered in the course of legal proceedings, or in news of the day that
are mere items of press information. (our underlining)

30.

We know of no South African reported decision on this statutory provision. Its

jurisdictional requirements for present purposes are these:

30.1. As before, a prior finding that, but for the prospective application of the section,
copyright would subsist;

30.2. News of the day (in whatever form); and

30.3. Which is an item or items of press information.

19

31.

The expressions news of the day and press information are very broad and susceptible
to a variety of constructions, we submit. In this regard:

31.1. news of the day, on an ordinary construction, would include newly-received or

noteworthy information (especially about recent or important events) which is
current on the date of its dissemination (as opposed to old news or dated
information which, although interesting and noteworthy, is not newly-received or
hot off the press). English fair dealing cases have interpreted current events
(synonymous with news of the day) as news events that occupy the public mind.35

31.2. press information, on the other hand, must surely be interpreted to mean that the
news of the day in question must be of the kind which would be imparted to the
press for information purposes in whatever form.

31.3. There is therefore no warrant on a proper construction of the words press

information to restrict those words to news of the day being imparted to the
press solely in the form of a press release. Although a press release is surely a form
of press information, it is merely one of several potential forms which press
information could take. Such other forms of press information would include, we
submit, information imparted to the press through an interview or, indeed, at any
occasion where the disseminator of the information intends (by whatever means) to
inform the press. This has important implications in the context of those of the

35

Ashdown v Telegraph Group [2002] Ch 149 CA at paras 63-64; Hyde Park Residence Ltd v Yelland and
Others [2001] Ch 143 at paras 28-32.

20

articles in issue which are based on public declarations by officials to the media, such
as at interviews or media briefings.

31.4. On this construction, we submit that the legislature recognises that news of the
day which is a mere item of press information in the sense that the original news
disseminator intends to inform the press at large of the news imparted, has intended
by section 12(8)(a) to afford no monopoly to anybody over the content of that news.
And it makes no difference whether the news of the day is first communicated to a
single member of the press: the content of the news remains disseminated to the
public at large for reproduction by the public at large, even (and especially) when
first reproduced by that single member of the press.

32.

In paragraph 53 of its heads of argument, Moneyweb contends that press information

should be understood to mean information given to the press which is intended to be
conveyed by the press to the general public in that precise form. We submit that there is
no basis for such a restricted interpretation: the statutory provision does in no way direct
the press to convey to the general public (or to anybody else) the information conveyed to
itself in the same form.

33.

The reason for this is self-evident: it would be senseless to oblige the press to inform its
electronic readership (or audio listenership, for example) if the original form of the press
information is not susceptible to further dissemination in the same form. An illustrative
example of this would be the news of the day supplied (as items of press information)
during the media briefings which formed the subject of Moneywebs articles in issue

21

entitled Group Five hits rock bottom, McDonalds plans to launch McKitchen, Defencex
mastermind rallies support and Chis Walker breaks the silence. Moneywebs source in
each of these articles was public addresses given to the media.

34.

We note in this regard that Moneyweb at least accepts that news of the day that are mere
items of press information could take other forms than a press release (heads of
argument, para 53).

B.2

35.

Section 12(1)(c)(i)

This is the fair dealing exception to copyright infringement contained in the Act on which
Fin24 relies.

36.

As before, any inquiry into fair dealing would necessarily be premised on a finding (which
we submit ought not to be made) that copyright subsists, in other words, that the
requirement of originality in each of the articles in issue is met, that infringement has
occurred in respect of a qualitatively substantial portion with reference to whether that
portion has been shown by Moneyweb to be original, and it accordingly renders
permissible (in the circumstances contemplated by the statutory provision) the
infringement in question.

37.

As before, we know of no reported South African decision on section 12(1)(c)(i).

38.

Section 12(1)(c)(i) for present purposes provides as follows:

22

Copyright shall not be infringed by any fair dealing with a literary or musical work

(c) for the purpose of reporting current events
(i) in a newspaper, magazine or similar periodical; or

Provided that, in the case of paragraphs (b) and (c)(i), the source shall be mentioned,
as well as the name of the author if it appears on the work.

39.

The above exception, legislatively-created for fair dealing in literary and musical works,
extends (as the words imply) to dealing with the work otherwise subject to copyright
protection. More importantly, it specifies that copyright which comprises a bundle of
rights vested exclusively in the author or owner by section 6 shall not be infringed by
dealing with the work in the circumstances stipulated. The act of reproducing the work in
any manner or form which is part of the author or owners bundle of rights referred to
collectively as copyright is thus permissibly done by another provided the requirements
of section 12(1)(c)(i) are met.

40.

The statutory provision contains three essential elements:

40.1. First, the dealing in the work must be fair;

40.2. Second, that fair dealing must be for the purpose of reporting current events in a
newspaper, magazine or similar periodical; and

40.3. Third, the dealing must attribute the work, by mentioning the source as well as
the name of the author if it appears on the work.

23

41.

In general terms, as regards these three requirements:

41.1. As to the first, the requirement of fairness is almost immeasurably broad in terms
of the range of prospective factors which a court ought to take into account to make
such a determination. We shall refer to relevant foreign jurisprudence in this regard
in order to focus the inquiry.

41.2. As to the second, the requirement that the purpose of the dealing must be for
reporting current events in a newspaper, magazine or similar periodical, we submit
that Fin24 is, in the current day and age, at least a periodical similar to a newspaper
or magazine (there is no requirement in the statutory provision that the medium be
print the medium can just as conceivably and acceptably be electronic; this
medium is certainly not excluded whether expressly or by implication). Whether the
dealing was for the purpose of reporting current events may be assessed with
reference to such factors as the timing of the dealing (the sooner the dealing after
first publication of the source work, the more likely the purpose of the dealing will
be regarded as to report current events) and whether the user is a bona fide news
publication (which is clear on the papers).36

41.3. As to the third, the requirement of attribution by mentioning the source and the
name of the author (if it appears on the work), the statutory provision is silent on the
manner and method of the mentioning. The verb to mention should therefore
be given its ordinary meaning, in our submission, which is clearly satisfied in each of
the articles in issue.
36

See, for example, Media Works NZ Ltd v Sky Television Network Ltd [2007] NZHC 924 para 48.

24

42.

These submissions are therefore directed principally at the first and third elements, that is,
at the requirements of fairness and attribution.

B.2.1 Fairness

43.

Fairness has sometimes been gauged by seeking to answer the hypothetical question as to
whether a fair-minded and honest person would (or might) have dealt with the source
work in the same manner that the person dealing with it did.37 The test for fairness is
objective.

44.

When considering foreign jurisprudence in this regard, we sound a cautionary note: some
jurisdictions, notably the American ones, have codifications on what constitutes fairness
in regards to fair dealing, or the broadly equivalent fair use in the United States. In
American law, [t]hese factors establish the contours within which a court may investigate
whether, in a given case, a finding of fair use would serve the objectives of copyright.38
The English courts, however, are bound by no such codification, yet they have imported
some of the factors for assessing fairness contained in some of those codes. The
assessment is carried out by considering these factors individually and deciding each one
either in favour of or against fairness, and all factors weighed up in a summative
impression, as appropriate on the facts of the case. The English courts treatment of
fairness in this context by allowing itself to be influenced by foreign developments rather

37

Media Works NZ Ltd (above) at para 59 and Newspaper Licensing Agency Ltd v Marks and Spencer Plc
[2001] 3 All ER 977 at para 44.
38
Per Tjoflat J in Cambridge University Press v Patton and Others Case Nos 12-14676 & 12-15147 (11th Cir
unreported 10 August 2014) at 5.

25

than considering themselves bound by these is therefore instructive, we submit, given

the absence of such codification in South African law.39

45.

The English statutory provision on fair dealing is contained in section 30 of the English
Copyright Designs and Patents Act 1988, the material parts of section 30(2) being fair
dealing with a work (other than a photograph) for the purpose of reporting current events
does not infringe the copyright in the work provided that it is accompanied by a sufficient
acknowledgment. The meaning of sufficient acknowledgment is defined further to
mean an acknowledgment identifying the work in question by its title or other description
and identifying the author . (section 178).

46.

The English principles are usefully summarised in two reported judgments: by the Court of
Appeal in Pro Sieben Media AG v Carlton UK Television Limited and Another [1998] EWCA
Civ 2001 and Newspaper Licensing Agency Limited v Marks & Spencer Plc [1999] EWHC
Patents 266.

47.

In Pro Sieben, the Court said this:

47.1. Fair dealing is a question of degree (relying on Hubbard v Vosper [1972] 2 QB 84 at

94, and at 93) where Lord Denning said It is not fair dealing for a rival in the trade to
take copyright material and use it for his own benefit) and of fact and impression;

39

The caution when applying foreign law, sounded in Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589
(A) at 613D-F, on account of differences in statutory provisions applicable in those jurisdictions, is
apposite, we submit. On the purpose and role of this exception in the South African environment, see
the informative account given by Shay RM Exclusive rights in news and the application of fair dealing
(2014) 3 South African Mercantile Law Journal.

26

47.2. The degree to which the challenged use competes with exploitation of the copyright
by its owner, although a very important consideration, is not the only
consideration;

47.3. The extent of the use is relevant, but its relevance depends on the particular
circumstances (thus, in Hubbard (above), the court contemplated a case in which the
quotation of an entire short work might be fair dealing);

47.4. In the words for the purpose of reporting current events, the mental element on
the part of the user is of little more importance than in such everyday composite
expressions as for the purpose of argument or for the purpose of comparison
the words in the context of or as part of an exercise in could be substituted for
for the purpose of without any significant alteration of meaning;

47.5. It is therefore not necessary for the court to place itself in the shoes of the infringer
in order to decide whether the offending piece was published for the particular
purpose;

47.6. reporting current events is an expression of wide and indefinite scope, any attempt
to plot its boundaries is doomed to failure, and hence the expression should be
interpreted liberally;40 and

40

A liberal interpretation of the fair dealing purposes being the correct approach, has been confirmed in
English case law: Fraser-Woodward Ltd v BBC and Another [2005] EWHC 472 (Ch) at paras 36-7; Ashdown
(above) at para 55; Marks & Spencer (above) at para 40. See also the Supreme Court of Canada decision
in CCH Canada Ltd (above) at para 51, and the New Zealand High Court decision in Media Works NZ Ltd
(above) at para 45.

27

47.7. the requirement of sufficient acknowledgment by identifying the author does

not mean that he should be identified by name: another form of identification is
sufficient, such as by a logo by which he is accustomed to identifying himself.

48.

In Marks & Spencer, the court approved of the summary contained in Pro Sieben and
added the following (at para 18):

48.1. The publication of a report or article in the press may itself constitute a current
event, and a defendants publication may constitute fair dealing for the purpose of
reporting current events though it contains no analysis or comment or any matter
other than use of the copyright material: the fact that the copyright material stands
alone may, however, be relevant to the issue of fairness of the dealing; and

48.2. Reporting of current events does not apply to matters which are merely currently
of interest but are not current events, or to matters not previously known and of
historical interest alone publication of matters which are not current events can
only be justified if reasonably necessary to understand, explain or give meaning to a
report of current events.41

49.

The court in Marks & Spencer went on to summarise the law thus (in para 19):

49.1. A defendant must first establish that the dealing was part of an exercise in reporting
current events;

41

See, too, Ashdown (above) at paras 63-64; Hyde Park Residence (above) at paras 28-32.

28

49.1.1. There is a public interest in the reporting of current events which justifies
overriding any barrier placed in its way by the law of copyright;42

49.1.2. Applying a liberal interpretation to current events, the event need not be
national, political or otherwise an important event: it may be a sporting event
and it may be a matter of entirely local interest to a few people, and the
threshold is not high or the hurdle difficult to surmount because freedom of
speech and freedom of information require that gateway to be wide;

49.2. Thereafter, a defendant must establish that the way the current events are reported
is in all the circumstances fair, having regard in particular to:

49.2.1. The interests of the copyright owner and how they are affected;

49.2.2. The activity carried on by the reporter;

49.2.3. Whether the copyright owner and reporter are in competition;

49.2.4. The extent that the copyright work is copied (we submit that for this to be a
separate factor as part of the fair dealing inquiry, it cannot be the same
inquiry as that of substantiality for the purposes of establishing
infringement, for the reason that fair dealing, as an exception, presupposes
that infringement has already been shown); and
42

See, too, HRH The Prince of Wales v Associated Newspapers Limited [2006] EWHC 522 (Ch) at para 165:
The defence [of fair dealing] is intended to protect the role of the media in informing the public about
matters of current concern to the public.

29

49.2.5. Whether the report should reasonably have been made in a manner less
intrusive upon the copyright owner's rights. If it appears that the reporter
has dealt with the copyright work, not in order to report current events, but
for some extraneous purpose, for example in order to exploit the copyright
work under the guise of reporting current events and thereby with impunity,
his use is not fair. A balancing exercise is called for between the interest of
the copyright owner in the preservation of his copyright and its value and
the interest of the reporter in dealing with the work as part of the exercise
of reporting current events. Both the first and second questions are "jury
questions" on which a common-sense judgment is called for: it will often be
a matter of impression reached after a careful scrutiny of the copyright work
and the "report" read in the light of the evidence and surrounding
circumstances.

49.3. If the first two hurdles are surmounted, the third hurdle must then also be
surmounted of a sufficient acknowledgement.

50.

And in the subsequent case of Ashdown v The Telegraph Group Limited [2001] EWCA Civ
1142, Lord Phillips quoted with approval (at para 70) the following passage from Laddie,
Prescott and Vitoria:

"It is impossible to lay down any hard-and-fast definition of what is fair dealing, for it
is a matter of fact, degree and impression. However, by far the most important
factor is whether the alleged fair dealing is in fact commercially competing with the
proprietor's exploitation of the copyright work, a substitute for the probable
purchase of authorised copies, and the like. If it is, the fair dealing defence will
almost certainly fail. If it is not and there is a moderate taking and there are no

30

special adverse factors, the defence is likely to succeed, especially if the defendant's
additional purpose is to right a wrong, to ventilate an honest grievance, to engage in
political controversy, and so on. The second most important factor is whether the
work has already been published or otherwise exposed to the public. If it has not,
and especially if the material has been obtained by a breach of confidence or other
mean or underhand dealing, the courts will be reluctant to say this is fair. However
this is by no means conclusive, for sometimes it is necessary for the purposes of
legitimate public controversy to make use of 'leaked' information. The third most
important factor is the amount and importance of the work that has been taken. For,
although it is permissible to take a substantial part of the work (if not, there could be
no question of infringement in the first place), in some circumstances the taking of an
excessive amount, or the taking of even a small amount if on a regular basis, would
negative fair dealing."

51.

These cases have revealed several factors which are instructive to the present case.
Scrutiny of the considerations that remain constant in all instances of alleged infringement
reveals that the context in which the uses were made points to fairness.

52.

Commercial gain has been noted as a factor in the fairness inquiry. Users are typically
engaged in an exercise of reporting current events for financial gain, but this does not
derogate from the required purpose when determining whether the conduct falls within
the purview of the fair dealing exception. The element of financial gain is to be considered
under the assessment of fairness, although in some instances the fact that the user collects
information from external sources and compiles this information in a different format to
send to paying subscribers could disqualify it from relying on the defence ex ante, as it will
not be engaged in an exercise of reporting current events. An example of commercial gain
rendering the dealing unfair would be a business set up for no purpose other than, for
example, to provide a commercial media monitoring service to business customers such
that it makes millions of pounds from its own activities which include scraping the
Publishers websites for its own commercial gain, and it does this by using so-called

31

spider programmes to scrape or read the content.43 Similarly, the fact that the user
was a subscription service that charged its members a fee to access the scraped or
substantially reproduced content has proved critical to this element of fairness. Crucially,
this is not the present case, nor is this alleged, as there can be no doubt that Fin24 carries
on its trade by reporting current events rather than circulating information to a closed
group of corporate clients. 44

53.

The fact that the two parties may be in competition would be of significantly less
importance in deciding whether the dealing was fair where, for example, the dealing is
done in terms of journalistic discretion, based on publicly-accessible material, as part of an
overall mission to provide news and coverage of current events on a publicly-available
platform (the world wide web) to all at no cost to the consumer. We submit that even
were dealing in this way (as a result of advertising, for example) to result in some financial
gain to the dealer, this would not on its own render the dealing unfair.

54.

The statutory provision does not require that the reporting of current events be the sole
purpose: the requirements of the section are met once it is found that the reporting of
current events was the purpose, albeit not the sole or only purpose. To find otherwise
would restrict fair dealing to exclusively philanthropic dealing, which would be entirely

43

The Newspaper Licensing Agency Ltd and Others v Meltwater Holding BV and Others [2010] EWCH 3099
(Ch) at paras 3, 19 and 25; The Newspaper Licensing Agency Limited and Others v Meltwater Holding BV
and Others [2011] EWCA Civ 890.
44
This conclusion may be drawn from the reasoning of Peter Gibson LJ in Marks and Spencer (above) at para
43: [T]o interpret s. 30 (2) as providing a defence to copyright infringement in a case like the present
would seem to me to have nothing to do with the public interest and everything to do with serving the
private commercial interests of M&S. I can see no public interest reason why the legislature should want
to provide a defence to an infringement of copyright for the copying within a commercial organisation for
commercial reasons of material subject to copyright, whereas a public interest can be discerned in the
public reporting of newsworthy current events.
This was similarly the case in Meltwater (above), which distinguishes the present facts from these cases.

32

unwarranted (not to mention that even in the case of philanthropy, it is frequently the case
that it is done with a purpose of producing gain to the philanthropist in the form of
publicity, which may easily be susceptible to conversion into financial gain at a later stage).
Further, the omission of a non-commercial qualifier (as employed by the legislature in
section 12(1)(a)) indicates the legislative intention for this exception to apply to news
reporters who make use of copyright works in the course of reporting news events as part
of a commercial enterprise.

55.

The overriding purpose of financial gain by serving a deliberately-restricted market (as

opposed to the public) was, it appears, principally what motivated the courts in Meltwater
(above, both at first instance and on appeal) which dealt with Meltwater as a news
scraper using a spider programme to find that the public interest was not advanced
by Meltwaters activities: Meltwater News is not intended for public consumption; it is
tailored, and addressed exclusively, to particular End Users for their clients purposes.

56.

Thus, although the existence of financial gain may be a factor in deciding the purpose of
the dealing, it is by no means decisive and cannot place a use beyond the ambit of section
12(1)(c). In this regard, we submit that it is crucial to distinguish between news services
that compile their own reports for public consumption (of which Fin24 is an example),
news services which compile their own reports which are kept behind a pay-wall and thus
not freely available for public consumption (which Fin24 is not), and scraping services that
collect information from other publications in order to compile an aggregated list of
hyperlinks, sometimes accompanied by copy reproduced (not rewritten) from the source
(which Fin24 is also not).

33

57.

Moneyweb argues that because the use competes with exploitation of the copyright work
and can act as a substitute for the work, Fin24s reliance on section 12(1) and fair dealing
defence must fail.45 It is submitted that the court should exercise tremendous caution
when applying this factor. If this factor is elevated to disproportionate importance as the
Moneyweb would have this Court do it would prove devastating to the value of the entire
provision by focusing the fairness enquiry on ascertaining simply whether two news
publications serve the same readership and thereby summarily deem the use unfair if one
sourced content from the other. The danger inherent in this approach has been recognised
by various foreign courts and cautioned against, most succinctly expressed in warning
sounded by McLachlin CJ in CCH Canadian Ltd (above) at para 59, echoed by courts in
Australia46 and New Zealand47: Although the effect of the dealing on the market of the
copyright owner is an important factor, it is neither the only factor nor the most important
factor that a court must consider in deciding if the dealing is fair.

58.

It is accepted that this factor should play a role in the determination of fairness, but it
should take its proper place along with all other relevant considerations that culminate in
an overall conclusion of fairness or unfairness, instead of pre-empting the evaluation
through over-reliance on one simplistic aspect.

45

Moneywebs heads of argument in paras 74.2 and 76 respectively.

Per Bennet J in Fairfax Media Publications v Reed [2010] FCA 984 at para 142: The commercial nature of
[the respondents] activities in providing a subscription based service does not preclude a finding that its
use of [the applicants work] is a fair dealing, citing TCN Channel Nine v Network Ten (2001) 108 FCR
235.
47
Again per Winkelmann J in Media Works (above) at para 62: [T]he defence of fair dealing allows use of
anothers copyright work, by a competitor or otherwise, in certain limited situations (such as news
reporting), because it is thought to be desirable to encourage such uses. (our underlining)
46

34

59.

Fair dealing is more readily established where the source work referring to current events
is susceptible to being considered as largely factual. There are occasions, for example, that
the public has an interest not only in the information contained in the source being
published, but also in being told the very words used by the author of the source work,
notwithstanding that the author enjoys copyright over them.48 Importantly, the articles in
issue are not intended to relay an editorial opinion or provide in-depth analysis of recent
events, which would naturally attract more stringent protection; they simply report
information, sometimes relaying the very words spoken by a figure central to the news
event. In this regard, the public interest in receiving information about relevant political
and economic events should determine the degree of lenience that users are allowed in
making use of existing works to create new works (if the users serve that public interest by
disseminating the work as widely as possible).49 Considering that fair dealing claims are
feasible in relation to popular culture and sports news programmes50 where the nature of
the work is much closer to the intended target of copyright protection works that are
primarily or exclusively factual in nature must allow a greater amount of use before this
factor is decided against the user. This approach is reflected in foreign copyright principles
and doctrines.51

48

HRH The Prince of Wales (above) at para 171, relying on Ashdown (above).
As held by Winkelmann J in Media Works (above) at para 67: The greater the public interest in a particular
event, the greater the interest in the reporting of it.
50
Media Works (above) at paras 46-47; British Broadcasting Corporation v British Satellite Broadcasting Ltd
[1992] 1 Ch 141 at 154.
51
In the United States the doctrine of merger (as explained in note 34 above) safeguards the public
domain and encourages prolific use of factual works where no literary elegance is evident. For US case
law confirming that more leeway is given to uses of informational works in claims of fair use, see
Cambridge University Press (above); Dr Seuss Enters LP v Penguin Books USA Inc 109 F3d 1394 (9th Cir
1997); Hustler Magazine Inc v Moral Majority Inc 796 F2d 1148 (9th Cir 1986).
49

35

60.

The monopoly granted over copyright works is inherently subject to various public interest
limitations, notably considerations of freedom of expression and the widest possible
dissemination of information. In this context the fair dealing exception contained in section
12(1)(c) must be applied purposively, in line with constitutional principles and public policy
goals. Fair dealing provisions are designed to advance the central goal of copyright: to
encourage the abundant creation of socially-valuable works. Section 12(1)(c) is clearly
intended to stimulate the proliferation of news reportage, so as to serve this same central
goal. Finding against the purposive application of this crucial mechanism would be
disregarding the significant public interest entrenched in the aims of the Copyright Act and
could be fatal to the extra-judicial reliance placed on this particular provision by the South
African press.

61.

One may reasonably ask the question as to how the public interest would not be served by
preventing the widest possible dissemination of largely factual material describing current
events; and obversely, how the public interest is served by as wide a dissemination as
possible of facts which constitute current events. Below it is illustrated how the aims and
intentions of copyright law are best served in the constitutional context by the liberal
interpretation and flexible application of the fair dealing provisions so as to accommodate
legitimate uses of copyright works.

B.2.2 Attribution

62.

Section 12(1)(c)(i) requires nothing more than that the source be mentioned, as well as the
name of the author if it appears on the source work.

36

63.

Mentioning, we submit, is synonymous with referring to. We submit that mentioning

the source and author (if the latter is known) is broader than identifying in the English
section 178 read with section 30(2).

64.

Moreover, substantial compliance with a statutory provision may be sufficient in certain

circumstances.52 The question resolves itself into whether the object of the statutory
provision has been achieved (which is ascertained from the language, scope and purpose
of the enactment as a whole and the statutory requirement in particular) and this even
where the formalities required by the statute are peremptory.53 This is especially pertinent
to the purpose of section 12(1)(c) when interpreted in line with the constitutional
mandates expressed and the objectives implicit in section 16 of the Bill of Rights, relating to
freedom of expression, which we address further below.

65.

We submit that on any reading of the attribution requirement contained in section

12(1)(c)(i), read with the Act as a whole, its object is to acknowledge or credit the source
and author if the latter is known. We submit that although in 1978 surely the best way to
do so (indeed, perhaps even the only way in the paper-based, literary work industry of the
time) was by mentioning the source and author if known, there is no reason to conclude
that the object of the attribution requirement in section 12(1)(c)(i) could not be served in
2015 by other, arguably better, ways, such as by providing a deeplink that identifies the
source and which refers the reader back to the source by the simple click of a button.

52

Ferris and Another v Firstrand Bank Limited 2014 (3) SA 39 (CC) at para [21].
Liebenberg NO and Others v Bergrivier Municipality 2013 (5) SA 246 (CC) at paras [22]-[26] and the
authorities there cited.

53

37

B.2.3 Constitutional issues in fair dealing

66.

Sections 16(1)(a)-(b) of the Constitution provide as follows:

Freedom of expression
16

(1)

Everyone has the right to freedom of expression, which includes

(a) Freedom of the press and other media;

(b) Freedom to receive or impart information or ideas;

67.

Fin24 makes no collateral challenge to the validity of any provision of the Copyright Act on
constitutional grounds. Instead, we contend that the relevant provisions of the Copyright
Act should be interpreted (and given effect to) in the light of the above provisions of
section 16 of the Constitution.54 We do not contend that section 16 permits copyright
infringement: we contend that when determining difficult cases of alleged copyright
infringement, regard should be had to the object and purport of section 16.

68.

The role of the media has, in particular, been recognized as (among other things)
facilitating and driving freedom of speech. Especially, the duty or responsibility of the
media to disseminate information to the citizenry has been recognised (admittedly in the
context of defamation)55 in the following terms as:

54

Record pp.292-293 answering affidavit para 41.

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA)

55

38

the right, and indeed a vital function to make available to the community
information and criticism about every aspect of public, political, social and economic
activity and thus to contribute to the formation of public opinion56

and

the democratic imperative that the common good is best served by the free flow of
information and the task of the media in the process57

69.

By this, we do not mean to suggest (let alone contend) that the media (of which both
parties form part) should be elevated to any status allowing them to ride roughshod over
the law of copyright for no reason other than their judicially-recognised right to inform the
citizenry about every aspect of public, social, political, social and economic activity: instead,
we submit that their right in this regard should be advanced by a constitutionally-compliant
interpretation of the copyright law.58 To recognise this imperative is justified; the idea that
journalism has a different and superior status in the Constitution is not.59

70.

The requirements of section 12(1)(c)(i) of the Act must, we submit, be understood through
the prism of the Constitution and, specifically, the right to freedom of expression: this is
trite.60 The inquiry must proceed by balancing the interests of the copyright owner against
the claim of free expression for the very purpose of determining what is unfair and

56

At 1209I.
At 1210H.
58
The enforcement of intellectual property law must be constitutionally tenable: Laugh It Off Promotions CC
v SAB International (Finance) BV t/a SABMark International (Freedom of Expression Institute as Amicus
Curiae) 2006 (1) SA 144 (CC) at 156A.
59
Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) at
para [6].
60
Laugh It Off Promotions CC (above) at 164E.
57

39

materially harmful to the copyright owners interests.61 This means construing section
12(1)(c)(i) in a manner most compatible with the right to free expression.62

71.

Unlike section 34(1)(c) of the Trade Marks Act, section 12(1)(c)(i) contains no internal
limitations (such as unfair advantage of or detriment to the mark), other than the words
fair dealing. Therefore, we submit for this particular reason that the injunction that
courts are obliged to delineate the bounds of the constitutional guarantee of free
expression generously63 is even more apt in the present case: fairness is the only criterion,
and dealing, even if it causes some harm to the copyright owner, is not precluded provided
it is fair.

72.

We submit that the special role of the media in an open and democratic society in
informing the citizenry on the vital areas of activity recognised in the Bogoshi case
(quoted above) is a compelling factor in favour of the generous interpretation of free
expression to be accorded to a constitutionally-compliant interpretation of section
12(1)(c)(i). What is fair, in turn, will have to be assessed case by case with regard to the
factual matrix and other context of the case.64

73.

We submit that the relevant factual matrix and other context to be taken into
consideration for the purposes of deciding what dealing is constitutionally fair when it

61

This was the test expounded by the Constitutional Court in relation to the competing rights of freedom of
speech and a trademark owner in terms of the anti-dilution provisions of section 34(1)(c) of the Trade
Marks Act of 1993: Laugh It Off Promotions CC (above) at 165D.
62
Ibid. at 167E.
63
Ibid. at 166F.
64
Ibid. at 167H.

40

comes to a media article on news and current events which would otherwise be subject to
copyright protection, are the following:

73.1. First, and most obviously, the fact that each of the works in question are media
articles on news and current events: the recognition of the right and indeed a vital
function of the media in Bogoshi to make available to the community information
and criticism about every aspect of public, political, social and economic activity and
thus to contribute to the formation of public opinion must be protected and
advanced.

73.2. Second, because there are no internal limitations in the wording of section 12(1)(c)(i)
relating to harm to the copyright owner as there are in section 34(1)(c) of the Trade
Marks Act, the dealing can cause some harm to the copyright owner provided the
dealing is otherwise fair.

73.3. Third, flowing from the second, the fact that Moneyweb and Fin24 may both be to
some extent in competition with one another would not on its own render the
dealing unfair: this is because there is no internal limitation in section 12(1)(c)(i)
which requires an inquiry into potential harm to be considered and weighed up.65

73.4. Fourth, the court in Bogoshi (above) specifically recognized the central interest of
the community to be informed about every aspect of public, political, social and
65

In this regard, we point out that in this context the American jurisprudence on fair dealing (fair use, as it
is called) is particularly uninstructive, because section 107 of the US Copyright Act 1976 does indeed
contain internal limitations regarding harm, which our section 12(1)(c) does not, notably as to whether
the use is of a commercial nature as well as the effect of the use upon the potential market for or value
of the copyright work.

41

economic activity and hence to contribute to the formation of public opinion. We

submit that this interest is protected and advanced by:

73.4.1. In the first place, an approach to originality in cases of news and current
events which promotes these interests of the community, rather than limiting
them in the sectarian interests of news providers (especially in cases such as
the present where all the articles in issue are freely available to the public,
without restriction);

73.4.2. In the second place, an approach to infringement which is permissive rather

than restrictive: in matters of news and current events, a qualitatively higher
level of copying should be permitted or, otherwise put, the nature and extent
of original creation in such areas should be reduced, rather than enlarged or
extended; and

73.4.3. In the third place, an approach to fair dealing which serves these interests of
the community, by promoting dealing in news and current events, mindful of
the new means of attributing source and the author in the digital age.

B.3

74.

Unlawful competition

Our submissions on this cause of action raised by Moneyweb are made within the
particular framework of this case, which is that where the conduct at issue is alleged to
consist of reproduction of a literary work such that unlawfulness is constituted only as a
result of the provisions of the Act, there can be no general, catch-all residual basis in the

42

common law for unlawfulness to be found should Moneyweb fail either to establish
subsistence of copyright or its infringement in terms of the Act.

75.

This is because it is recognised that copyright is essentially not a positive right but a
negative right: it does not grant positive rights to its owner, merely negative rights to
prevent others from doing certain acts (such as reproduction) which are restricted to the
owner. As was said in Ashdown (above) at para 30:

copyright is essentially not a positive but a negative right. No provision of the

Copyright Act confers in terms, upon the owner of copyright in a literary work, the
right to publish it. The Act gives the owner of the copyright the right to prevent
others from doing that which the Act recognises the owner alone has a right to do.
Thus copyright is antithetical to freedom of expression. It prevents all, save the
owner of the copyright, from expressing information in the form of the literary work
protected by the copyright.

76.

That unlawful competition as a matter of the common law cannot be brought in to save,
as it were, a copyright case which has foundered for failure to meet the requirements of
the Act, has been recognised by the Supreme Court of Appeal in Payen Components SA Ltd
(above)66 at 453F-G where the following was said:

much of Payen's evidence is to be found in the interstices between copyright and

passing off. In the case of copyright s 41(4) of the Act expressly provides that no
copyright or right in the nature of copyright shall subsist otherwise than by virtue of
the Act or some other law. Turning to passing off, it has not been relied upon at all
as such. In my opinion a Court should be wary of allowing the sharp outlines of these
two established branches of the law of unlawful competition, evolved through long
experience, to be fudged by allowing a vague penumbra around the outline.
Unlawful competition should not be added as a ragbag and often forlorn final
alternative to every trade mark, copyright, design or passing off action. In most such
cases it is one of the established categories or nothing.

66

See, too, Memory Institute SA CC (above) at para [8].

43

77.

We submit that these dicta are compelling: there is no basis to extend recognition of an
action for unlawful competition in circumstances where the action for copyright
infringement has failed. There is no such category of unlawful competition recognised at
common law. We return to this further below when we deal with Moneywebs contentions
(and authorities relied upon).

78.

Moreover, and in any event, we submit the very notion of unlawful competition implies
wrongful trading on a scale susceptible to causing harm: where at issue is, for example, a
proven scale of trading which is (all things considered) inconsequential in scope,67 the
maxim de minimis lex non curat finds application.

C.

THE ARTICLES IN ISSUE

79.

In the light of the above legal principles, we make the following submissions.

80.

To the extent to which there are conflicting allegations of fact between Moneyweb and
Fin24, on the basis of the authorities referred to above the allegations must be resolved on
Fin24s papers on the application of the Plascon-Evans test, irrespective of whether the
onus on the issue in respect of which the fact is relevant is on Fin24.

81.

Each of Moneywebs articles in issue being news articles is derived from one or several
other sources. The allegations made and evidence supplied by each respective author68 to
establish originality in these circumstances amounts to this: The article is an original work

67

Record p.289 answering affidavit para 35.2.

The authors affidavits all appear as part of annex Rvn18 to the founding papers, beginning at record
p.178.

68

44

and required my independent effort, skill and expertise to write. There is, however, some
additional evidence contained in Moneywebs founding affidavit69 in respect of each article
in issue which is then confirmed by the authors in their confirmatory affidavits.

82.

This evidence is, however, insufficient to sustain a finding that copyright subsists on the
basis of originality and that a qualitatively substantial part of the work was reproduced:
what was required (but which has not been done) was for the authors to put forward the
necessary facts as to what part(s) of each article represent(s) the product of their claimed
skill and judgment. It is not enough for each author simply to repeat the words used in the
case of CCH Canadian Ltd (as quoted with approval in the Haupt t/a Soft Copy case)
quoted in paragraph 10 above as to the test for originality, without informing this Court
as to which part(s) of their article represent(s) their own work.

83.

We add that Moneywebs heads of argument implicitly recognise this where, in paragraph
27, the following is submitted: Provided the work in question is not copied from another
source; and that skill and labour has been employed in its production, the work will qualify
as an original work for purposes of the Copyright Act (our underlining). To claim originality
and to hope to succeed in establishing that a qualitatively substantial part was copied or
adapted, the copyright owner must (where the work is manifestly based on other sources),
identify those parts of the work which are not copied and over which copyright is claimed.
This Moneyweb has not done.

69

Such as, for example, in respect of the author Kim Cloete who wrote Moneywebs article entitled Annual
packages for MPs may reach well over R1m record p.26 founding affidavit para 47.1.

45

84.

Moneywebs heads of argument contend (in paragraph 29.1) that there is no suggestion
that the content of any of Moneywebs articles were (sic) taken from any other source.
This cannot be right. In this regard:

84.1. The first article (Annual packages for MPs may reach well over R1m)70 was
expressly based on a press briefing in Parliament and the author attended the
press conference in Parliament, took notes ..71 Clearly, we submit, parts of what
the author (Kim Cloete) wrote were taken from the press briefing, over which
Moneyweb can claim no copyright. But nowhere does Moneyweb identify (as it
must) those parts of its article which represent Kim Cloetes work, rather than simply
information gleaned from the press briefing she attended. Thus, even if originality
and infringement are found (which for that reason they should not), section 12(8)
finds application: press information, properly construed, includes a press briefing
in Parliament.

84.2. The second article (Group Five hits rock bottom)72 was written, we are told, after
its author (Sasha Planting) was one of several journalists and analysts on a
conference call with Group Fives CEO.73 Here, too, Moneyweb relies on external
sources (Group Fives CEO) without identifying what parts of her article are his. In
any event, the CEO, providing topical information of current interest to members of
the press (journalists and analysts) is unquestionably informing the press: what he
is providing is thus press information within the meaning of section 12(8).
70

Record p.75.
Record p.26 founding affidavit para 47.1.
72
Record p.85.
73
Record p.28 founding affidavit para 49.
71

46

84.3. As regards the third article (McDonalds plans to launch McKitchen), this too was
derived from a public source: penned by Eleanor Seggie and followed a media
visit to the fast food chains Woodmead restaurant. Two journalists from other
media groups were also present.74 Here, too, it was incumbent upon Moneyweb to
identify the parts of the article which are Ms Seggies own work (as opposed to that
of Mr Greg Solomon, McDonalds managing director as explained in the article), and
her failure to do so means originality and any qualitatively substantial reproduction
by Fin24 cannot be established. Additionally, that Mr Solomon was addressing a
media tour indicates that informing the press was McDonalds purpose: section
12(8) properly construed, includes a media tour with that purpose within the
meaning of press information.

84.4. The same applies to the fourth article (Hout Bay castle sold for R23m)75, where we
are told that the source of the article was a press release issued by Sothebys
International Realty on 13 September 2012 and that Moneywebs journalist took
note of the press release, but then phoned the senior executive.76 Although we are
not told which parts of Moneywebs article are extracted from the press release and
which from the telephone call, by a process of elimination this could be worked out.
This, however, does not resolve the issue as to which parts are the authors work as
opposed to a mere extraction from the press release or the telephone call, because
the latter at least is not identified. We return to this article, in a detailed exposition,

74

Record p.29 founding affidavit para 51.1.

Record p.97.
76
Record pp.29-30 founding affidavit para 53.1.
75

47

further below: the existing Sothebys press release (at record p.99) is the subject of
Fin24s accompanying affidavit, and we refer to the contents of that affidavit.

84.5. In respect of the fifth article (Angloplats Griffith responds to Shabangu outburst)77,
the source of the information was an in-depth interview with Amplats CEO Chris
Griffith which was a live broadcast and was also recorded by Moneyweb .78
The fact that Moneyweb made a sound recording (and then a transcript from that) is
a red-herring: Fin24 is not alleged to have done any of the restricted acts contained
in section 9 of the Act applicable to sound recordings. There can be no copyright in
the transcript per se because there is no originality in it it has simply been written
down mechanically and mechanistically. It was incumbent upon Mr van Niekerk to
put up the transcript to demonstrate that he did indeed make the extract of the
most salient quotes.

84.6. The sixth article (Defencex mastermind rallies support)79 was sourced from a
special Defencex event at which Chris Walker addressed participants as he,
until then, bluntly refused to speak to the media.80 The information in Moneywebs
article (and its presentation) was thus demonstrably derived from an external
source, namely Mr Walkers public address. Moneyweb has claimed no copyright in
that address, and nor can it, and it has failed to demonstrate originality and that a
qualitatively substantial portion (with reference to the original parts, unidentified)
was copied by Fin24. In addition, as before, this was a public event at which Mr
77

Record p.105.
Record p.31 founding affidavit para 55.1.
79
Record p.128.
80
Record p.36 founding affidavit para 66.
78

48

Walker intentionally addressed media representatives: the news of current interest

which he imparted was accordingly to inform those media representatives present
and was, therefore, press information within the meaning section 12(8).

84.7. The seventh article (Chris Walker breaks the silence)81 was sourced from an
interview82 with Mr Chris Walker and coverage of official legal proceedings.83
Here, too, we are not told which parts of the article constitute the authors own
work and which parts belong to Mr Walker (or the others involved in the official
legal proceedings): originality and any qualitatively substantial reproduction have
not been demonstrated.

84.8. In respect of the eighth article (A hefty price tag for Davos)84, Moneyweb goes a
little further, but not enough, by alleging that the author made several actual
deductions and comments based on her having sourced information from the New
York Times and Bloomberg and attributing them in her article.85 There is no clear
indication of what her deductions and comments were. As before, originality and a
qualitatively substantial reproduction have not been shown.

84.9. Because there are parts of each article over which Moneyweb cannot claim
originality (for the above reasons) and Moneyweb has not identified which those
are, it makes no difference in this inquiry that Moneyweb and/or its authors invested
time and costs in the preparation of each article, for it is not established by
81

Record p.161.
Record p.46 founding affidavit para 76.
83
Record p.46 founding affidavit para 76.
84
Record p.790.
85
Record p.734 affidavit of Radebe para 6.
82

49

Moneyweb that this investment was in respect of any original part of each article
over which originality could be asserted. Incurring costs, time and effort for the
purposes of gathering news of the day which is a mere item of press information
does not for that reason render a work original and any copying of any part of it an
infringement of copyright.

84.10. We submit in the circumstances that contrary to what is alleged in paragraph 29.2 of
Moneywebs heads of argument, there is no evidence (let alone considerable
evidence) in support of a finding of originality in respect of those parts which could
be claimed to be original and, in consequence, in support a finding of a qualitatively
substantial copying.

84.11. Accordingly, there is no basis to allege (as Moneyweb does in paragraph 30 of its
heads argument) that [the fact that] Fin24.com felt it necessary to copy each of
these articles is itself strong evidence of the originality of the works in question.
Where Fin24 only derived its articles from parts of Moneywebs articles, it was
incumbent upon Moneyweb to identify the parts of its articles which it alleges are
original and to put up evidence in support of the legal conclusion of originality in
respect of those parts, for the purposes of the infringement inquiry. This it has
nowhere done.

85.

None of the articles is an original analysis on its own: each is nothing more than a report of
what somebody else has said. This renders it all the more necessary that each Moneyweb
author put up the necessary facts as to how he or she went about writing their article and,

50

especially, what parts were taken from its sources, such that the inquiry into originality
may begin and the inquiry into a qualitatively substantial reproduction may continue.
Those inquiries, for the reasons submitted above, cannot conclude in favour of Moneyweb
in respect of the articles in issue, given the total absence on the papers of these necessary
facts.

C.1

86.

No originality in the articles in issue

In respect of none of the articles in issue has Moneyweb alleged (let alone proved) facts
necessary to establish which parts of each of its articles are claimed to represent the
authors original work. The expenditure of time, money and effort to attend a presentation
to the media does not on its own mean that whatever is written in consequence is an
original work. As was said in the Waylite Diary CC case above (para 12 above), it remains a
value judgment whether that time and effort produces something original.

87.

We submit accordingly that originality has not been shown.

88.

By way of illustration, we have prepared a side-by-side comparison of three of the articles

in issue, along with Fin24s derivation of it, namely Moneywebs articles entitled Hout Bay
castle sold for R23m,86 Annual packages for MPs may reach well over R1m87 and A
hefty price tag for Davos.88 The first two have been done because it is only in respect of
these that Moneyweb has provided the source of its articles, and the third is done
conditionally, as described below.

86

Record p.97 annex RvN 6.1.

Record p.75.
88
Record p.790.
87

51

89.

A tabular representation of Fin24s corresponding article as against Moneywebs article is

annexed for each of the Hout Bay castle and MPs salaries article respectively as A and
B. We provide, similarly, a tabular representation in respect of Moneywebs Davos
article (at record p.790), which we present conditionally on the basis of Moneywebs case
and evidence in this regard not being struck out as inadmissible new material in reply. The
tabular representation is annexed as C. The source material for Moneywebs article not
presented by Moneyweb is presented in the further affidavit of Mr Momberg, filed
herewith, and also presented conditionally on the same basis. Tables A, B and C represent
the following:

89.1. The three columns in each table represent the source work of Moneywebs article,
the Moneyweb article itself and the corresponding Fin24 article. As regards the Hout
Bay castle article (annex A), the source article examined is the correct Sothebys
press release (as referred to and annexed by Mr Theron in his affidavit as JT 1
delivered with these heads of argument) and as regards the Davos article, the only
which Fin24 has been able to find is the CNN article referred to in Moneywebs
article.

89.2. The words in green across these columns appearing in A and B are the words
sourced from Moneywebs source, and the highlighted words are those appearing in
Fin24s article which only appear in Moneywebs article and not Moneywebs source
article. Words in green appearing in C are words appearing in the CNN source
article; similarly, highlighted words in C are those appearing in Fin24s article
which only appear in Moneywebs article and not in the CNN source article.

52

89.3. It follows from this that the original Moneyweb words, sourced by Fin24 from
Moneyweb, are those which a high-lighted, and it is only in respect of those that any
claim to originality by Moneyweb may be made (if shown by Moneyweb to be
original, which it has not done).

90.

In these circumstances, it is apparent at a glance that the highlighted words appearing in

A, B and C are not only quantitatively insubstantial, but are especially qualitatively
insubstantial as well. Simply put, leaving them out of Fin24s article would have a
qualitatively insubstantial effect upon the content and meaning of Fin24s article.
Accordingly, for Fin24 to have sourced them from Moneyweb is not susceptible to founding
a claim by Moneyweb of infringement.

91.

What these illustrations show, we submit, is the following:

91.1. All the words in ordinary black lettering appearing under the Moneyweb and Fin24
columns are incapable of founding a claim based on copyright: since they appear in
the Sothebys press release (for the Hout Bay castle article) or in the SAPA press
release (for the MP Salaries article), they are on any basis words amounting to news
of the day that are mere items of press information, within the meaning section
12(8) of the Act, and are accordingly statutorily exempt from copyright protection.

91.2. The highlighted words appearing under the Fin24 column, indicating that they are
words which do not appear in Moneywebs source and are therefore Moneywebs
own words, are not susceptible to copyright protection for two reasons:

53

91.2.1.

First, for the reasons already submitted, there are no facts even
suggested by their author from which the legal conclusion of
originality may be drawn: there is nothing on the papers to indicate
that those words represent the produce of the effort, labour and
expense allegedly expended by the author;

91.2.2.

Second, even were such facts put up, the legal conclusion of
originality could not be drawn: the words used are trivial and
commonplace and are accordingly not susceptible to any copyright
protection because their use is unoriginal.89

92.

Conclusive proof of the fact that Fin24s article MPs to get huge salary hikes was not a
slavish copy of Moneywebs corresponding is the fact that the Moneyweb article refers
to ministers salaries being increased to just over the R2m mark whereas the Fin24 article
gives a more accurate figure, of over R2.06m. The extract from the Government Gazette
(reproduced in Fin24s article) gives the actual figure of 2,006,292. The Government
Gazette is clearly an official text of a legislative or legal nature in respect of which
copyright is statutorily exempt by section 12(8)(a).

89

This is similar to standard musical, artistic and thematic elements being regarded as scnes faire and
open for all to use, because it is undesirable to lock up the common pool of resources that constitutes a
defining part of works of a certain genre or type. The principle is encapsulated by Gould J in Satava v
Lowry 323 F3d 805 (2003) at 810: [E]xpressions that are standard, stock, or common to a particular
subject matter or medium are not protectable under copyright law. Common and unoriginal use of
language should likewise not be protected, as basic expression is an indispensible tool the news reporting
industry. For discussions of the scenes a faire doctrine in US case law, see: Ets-Hokin v Skyy Spirits Inc 323
F3d 763 (2003) at para 45 (artistic works); (artistic works) Black v Gosdin 740 F.Supp 1288 (1990) at 1292-
1293 (musical work); Walker v Time Life Films Inc 784 F2d 44 (1986) 50 (literary works of fiction and
cinematograph films).

54

93.

As far as the remaining articles are concerned, the source of Moneywebs articles has not
been placed before this Court. There is accordingly no admissible basis upon which similar
side-by-side comparisons may be done.

C.2

94.

No qualitatively substantial reproduction of any Moneyweb article in issue

Our submission in this regard is the following: for the reasons advanced above, because
Moneyweb has not identified those parts of its works (which are all derived from other
sources) which are the product of its own skill and judgment (or those of its authors) and
therefore over which a valid claim to originality may be made, it is not possible to enter
upon an inquiry as to whether a qualitatively substantial part has been taken (an essential
requirement for infringement, as contemplated by section 1(2A)), since to determine that
question requires a prior determination of the degree of originality of those parts which
have allegedly been taken.

95.

In this regard, there is a sleight of hand in paragraph 34 of Moneywebs heads of argument.

The implication is made there that Fin24s articles are sourced entirely from Moneyweb in
circumstances in which the sourced parts are protected by copyright. Apart from the fact
this is factually incorrect,90 it also glosses over the vital distinction between copying original
and copying non-original parts of Moneyweb articles. And Moneyweb goes further: in
paragraph 87 of its heads of argument, it includes a table purporting to show the degree of
alleged quantitative copying of Moneywebs articles by Fin24, based on material which
appears to come from the replying papers. More importantly, however, the table is
premised on the (incorrect) assumption that the entire Moneyweb article in issue is

90

Record pp.293-295 answering affidavit para 44. See, too, for example, pp.128-132.

55

original. We shall demonstrate this further at the hearing with reference to the above side-
by-side comparisons.

96.

In these circumstances, the contentions made in paragraph 38.2 (apart from the first
sentence) of Moneywebs heads of argument are unjustified.

97.

In this regard, we submit that reliance by Moneyweb on the case of Galago Publishers (Pty)
Ltd (in paragraph 39 of its heads of argument) is inapposite. In the first place, in that case
there was no argument that the allegedly original work was indeed original. Moreover, the
alleged infringer had conceded that if there was sufficient objective similarity between
the two works for the infringers work to be found to be a reproduction of the original work
or a substantial part thereof, then the necessary causal connection was present, and
accordingly the only issue before the court was whether there was objective similarity
between the two works (at 283I).

98.

But that is not the issue before this Court in the present case. Centrally at issue in this case
(for the above reasons) is whether the alleged infringer (Fin24) has copied a substantial
part of Moneywebs corresponding article, in circumstances in which Moneyweb has
sourced its work from a third party. In these circumstances, to determine whether Fin24
has reproduced a substantial part of Moneywebs work, the parts of Moneywebs article
allegedly reproduced by Fin24 must not only be identified but be shown by Moneyweb to
be original. This was not an issue before the Court in Galago Publishers, where there was
no evidence before the court that the claimed original work (Top Secret War) was made

56

up (at least in part) from anothers work. Otherwise put, the originality of Top Secret
War was not in issue.

99.

Additionally, part of the reasoning of the Court in Galago Publishers behind its finding that
there was indeed a sufficient objective similarity between the two works, was that there
had been a very considerable amount of language copying (at 294A). This is manifestly
not the case in the above two illustrative examples of the articles in issue, as the paucity of
high-lighted words in the two examples make clear. Moreover and in any event, a finding
of language copying would have little bearing on the remainder of the articles in issue in
this matter, because Moneyweb has not shown which parts of its work are its own original
language for the purposes of determining whether Fin24s sourcing of it amounts to a
qualitatively substantial reproduction.

100.

Therefore, it is not enough in support of a finding of a qualitatively substantial reproduction

for Moneyweb to contend (as it does in paragraph 40 of its heads of argument) that
measured qualitatively it is clear that the Fin24.com articles are reproductions of the
Moneyweb articles. Although it is true that even a few words, sentences or phrases can
be regarded as separate discrete works enjoying copyright (Moneywebs heads of
argument para 41) these must be shown to be original to Moneyweb and that they are
qualitatively substantial enough to the work as a whole that their reproduction would
amount to a substantial reproduction, within the meaning of section 1(2A) of the Act.

101.

Accordingly, Moneywebs allegation in paragraph 81 of its heads of argument (that Fin24s

approach was simply to lift the most pertinent paragraphs from the Moneyweb article)

57

does not assist (even if true, which is denied), without more, the conclusion that Fin24s
articles are a qualitatively substantial reproduction of Moneywebs corresponding article.
The more that Moneyweb has not demonstrated is the originality of those most
pertinent paragraphs.

102.

In paragraphs 39, 44 and 78 of its heads of argument, Moneyweb refers reproduction by

way of abridgement (with reference to the Galago case) and to adaptation. Adaptation
has not been raised on the papers, and the facts of the case in Galago differed toto caelo
from the facts in the present matter.

C.3

103.

Fair dealing

The aforegoing has important implications for Fin24s fair dealing defence. Given that
Moneyweb has not shown a qualitatively substantial reproduction by Fin24 (for the above
reasons), an inquiry into fair dealing does not arise because no infringement has been
established which the fair dealing exception would excuse. In this regard, Moneyweb
submits (in paragraph 89 of its heads of argument) that what must then be considered is
whether what was taken by Media24 extends beyond what was legitimate. On our
argument on originality and infringement, Moneyweb has not demonstrated that what
Media24 has allegedly taken is qualitatively substantial.

104.

But accepting for the sake of argument that Moneyweb manages to show both originality
and a qualitatively substantial reproduction of the original parts by Fin24 (which is denied),

58

all the articles in issue relate to current news and events: this is admitted by Moneyweb91
- it follows that the current events jurisdictional fact contained in section 12(1)(c)(i) is met
on any reasonable construction in respect of each of the articles in issue (inquiries which
would only arise in law, on the basis set forth above, if the infringement is shown, which is
denied).

105.

The side-by-side comparisons referred to above again aid in understanding the particulars
of the fair dealing defence. The Hout Bay castle article comparison (annex A) reveals that
a negligible amount of original literary expression is common to the articles, the only
notable line being a direct quote from a source (which is attributed). Practically all other
information and expression used was obtained from the public domain by Moneyweb,
rendering Fin24s use of both as lawful as Moneywebs. This revelation effectively neuters
any entitlement to exploit the article that Moneyweb asserts, as the article is no more than
a substitute for the press release. Fin24s distillation of the most important elements of
the source arguably renders it more transformative than Moneywebs, as it manages to
condense the factual essence to under half the length of both sources.

106.

The MP salaries articles (annex B) compare very similarly. Of the three pieces of arguably
new information or expression sourced from Moneyweb, two are figures (which, by their
nature, do not allow very much in the way of original expression) and the other is a
description of a salary package. More than half of Fin24s article is sourced from SAPA
under license, while less than a fifth is derived from Moneyweb. The selection and
arrangement of information is markedly different, which indicates transformative use, and

91

Record p.263 answering affidavit para 5.1, read with record p.422 replying affidavit para 33.

59

there is a prominent acknowledgement of Moneyweb for the information sourced

(although, it bears repeating, Moneyweb cannot lay any claim to the information other
than how it was expressed, if original).

107.

Mindful that it is accordingly common cause that what is at issue in this application is the
media reporting of current news and events as exemplified in the press articles in issue,
the public interest comes strongly to the fore: in the application of the provisions of the Act
(as infused by the Constitution), a broad construction is called for to ensure that the
relevant provisions of the Act are construed so as not to afford any one person or
organization a monopoly on the dissemination of news, especially when that news is
largely factual and is not susceptible to being quickly, intelligibly and sensibly imparted in a
myriad ways.92

108.

There is no allegation anywhere in the papers that Fin24 operates any form of restricted
publication (of the alleged reproduction of the seven articles in issue, or otherwise) to a
reduced or selected category of persons on the basis of a subscription or other fee: it may
be accepted that Fin24 publishes its articles on the world wide web for all to see and to
read, and to do this without charge.

109.

As for the factor of the activity of the reporter, the degree to which the activity tends to be
rather more fact-based than creativity-based (and the resultant work characterised as
closer to factual reporting than any great exercise of skill and judgment, such as a novel) is
significant. The defining characteristic of each use is that it was done with an informatory
purpose that is, Moneywebs factual content was used with the primary intention of

92

Record p.264 answering affidavit paras 5.2-5.3.

60

disseminating the content to inform the public of the matters reported. It is evident from
the attribution provided in each case that Fin24 used Moneywebs publications all of
which are indubitably of a factual character and in the public domain as a source of
information, rather than trying to deceive readers into thinking that it had gathered and
verified the information itself. Further, the earliest use of information made by Fin24 was
seven hours subsequent to publication,93 which indicates disinterest in capturing
Moneywebs scoop. These facts establish a lack of bad faith.

110.

Each use must be considered transformative, since there was no wholesale reproduction of
information or expression as averred by Moneyweb. There has been no verbatim copying
of works, as Moneyweb contends in order to ground its allegation of plagiarism. But as
that claim cannot be substantiated on the facts it follows that the use of the sourced
material was transformative. This transformative character of each use lies in identifying
the core factual elements, rewriting these elements in a condensed form, which is
accompanied by additional facts and material to contextualise the information being
relayed.94 Given the factual nature of the works, it is submitted that the level of
transformative input required for a finding of fairness on this factor is much lower than
with genuinely creative works (which may more easily shown to be the subject of copyright
protection). It is shown in the individual analyses that the qualitative literary essence was
not reproduced in relation to the news reports, which is necessary to negate fair dealing. It
follows that where there was an insignificant amount of verbatim reproduction,
transformative use must be found.

93

6 hours 58 minutes elapsed between the publication of Angloplats Griffith responds to Shabangu
outburst (Record p.104 annex RvN7.1) and Amplats: CEO cites JSE rules (Record p.107 annex
RvN7.2).
94
The manner in which Fin24 wrote each article is explained: record pp.293-295 answering affidavit para 44.

61

111.

The nature and purpose of the dealings in the present case clearly weigh in favour of
fairness, as the public interest is to be found in the most widespread free dissemination of
topical information possible.

112.

It is manifest that there has been attribution of Moneyweb by Fin24 in each case in the
form of a hyperlink,95 that is, a clickable link back to Moneywebs article as the source
which, we submit, is at the very least substantial compliance with the requirement in
section 12(1)(c)(i) that the source shall be mentioned and the author named, if known. If
the purpose of the statutory provision is, as it must be, to acknowledge or credit the
source, then providing the source article by the mere click of a mouse must surely be
substantial compliance with the section to meet that purpose.

113.

In this regard, we submit that any attempt (as Moneyweb does)96 to place a value
judgment on click-through rates in consequence of the hyperlink with a view to using
that as a yardstick to determine compliance with section 12(1)(c)(i), is misguided: there is
either substantial compliance with the requirement that the source shall be mentioned or
there is not that inquiry cannot be determined with reference to any consideration of
whether the reader in fact returns to that source (there may be a myriad reasons why a
reader chooses not to return to the source, none of which is relevant to whether the
source has been acknowledged).

114.

The only reason Fin24 included click-through rates in its answer, was to demonstrate that
its acknowledgment of the source was effective (and thus substantially compliant with the

95

Record pp.293-295 answering affidavit para 44 and p.305 answering affidavit para 65.
Record pp.424-433 replying affidavit paras 44-48, and in its heads of argument in paragraph 83.

96

62

object of the statutory provision): that is not to say, however, that compliance with the
section should be determined with reference to any particular (inevitably arbitrary) click-
through rate, as if any rate below that threshold would mean that there has not been
substantial compliance with the section. This is because compliance with the statutory
provision would be dependent in that event on an arbitrary, ex post facto rate of click-
through to Moneywebs article, something which would only be known after the dealing
has taken place, and hence cannot be used as the yardstick as to whether the dealing
was permissible in the first place. Simply put, conduct must be known to be lawful or
unlawful in advance of doing the act in question; an approach which determines the
lawfulness of an act with reference to something which happens (or not) after it has
occurred is untenable on logical and legal grounds.

115.

We submit accordingly that there is no interpretative basis for the contention which
Moneyweb makes (in paragraph 76 of its heads of argument) that the fair dealing defence
requires that [Fin24s] article should not effectively dispense with the need for a user to
read the original Moneyweb article. There is no such further qualification in section
12(1)(c)(i) or elsewhere in the Act, and nor is any such qualification capable of being
construed from its provisions: all that is required is that the dealing be fair and that
attribution be done.

116.

Similarly, there is no qualification in, requirement or construction of the statutory provision

which directs Fin24 to transform Moneywebs articles into a different article serving a
different and non-competing purpose, as Moneyweb alleges further (in para 76 of its
heads of argument). So, too, is there no warrant for the construction of the statutory

63

provision that it cannot be relied upon where the second article simply substitutes for the
first (paras 77 and 78 of Moneywebs heads of argument, further).

117.

Likewise, there is no warrant for the import into the statutory provision of any genuine
intention on the part of author of the second article simply to make people aware of the
fact that a particular news item had been reported by Moneyweb (as is contended in
paragraph 79 of its heads argument). The genuine intention of any media organization
cannot be limited in this way, mindful of its constitutionally-recognised right and vital
function to inform public opinion (as opposed to disseminating Moneywebs name only).

118.

Moneyweb has itself made extensive use of other publishers articles in at least the six
instances referred to by Fin24, except that Moneyweb has not even troubled itself to
provide any form of attribution of the source.97 Moneywebs attempt to differentiate its
conduct in these six instances from that which it alleges against Fin24 through the seven
articles in issue is not convincing:98 Moneyweb, like Fin24, mentions the source by
referring to the publication containing the source, with the singular difference that
Moneyweb, unlike Fin24, does not provide a clickable hyperlink to that source. Assuming
that Moneyweb considers its own conduct to comply with industry standards, it follows
that Fin24 similarly complies in Moneywebs estimation of these standards.

119.

In this regard, there is no warrant for a construction of section 12(1)(c)(i) which directs that
every sentence or quotation or paragraph which has been copied from another source
must be attributed to that source, as Moneyweb contends in paragraph 92.2 of its heads

97

Record pp.281-283 answering affidavit para 25.

Record p.463 replying affidavit para 96.

98

64

of argument. The section provides for attribution of the literary or musical work (as the
case may be), not for the attribution of every sentence, line or word contained in it. There
is equally no basis for the speculative contentions contained in paragraph 92.4 of
Moneywebs heads of argument, we submit.

120.

The general approach taken by Moneyweb is to seek to pour scorn on Fin24s method of
journalism by contending that all Fin24 does is to copy the work of others and then re-write
it,99 the implication being that Fin24 has no journalists of its own. Moneyweb admits,
however, that Fin24 indeed employs four full-time journalists, of which the two most
senior have more than 37 years experience between them.100 There is therefore no
suggestion nor can there be that Fin24 conducts itself in any manner remotely
resembling that of a news scraper making use of a spider programme to find
newsworthy items and then to reproduce these (slavishly or otherwise) on its own
website (such as in the Meltwater case). There is also no denial that Fin24 does not follow,
in general terms, a wires-only strategy.101

C.4

121.

No unlawful competition

The suggestion is made throughout Moneywebs papers that the (evident) success of
Fin24s business is due to its alleged practice of copyright infringement. Moneyweb makes
no meaningful attempt to deal with Fin24s varied and dynamic product offering which Mr

99

Record pp.24-25 founding affidavit paras 44-45, for example.

Record p.269 answering affidavit para 6.6, read with record p.444 replying affidavit para 68.
101
Record p.274 answering affidavit para 20.1, read with record p.447 replying affidavit para 77.
100

65

Momberg describes as the reason for its success.102 In these circumstances, there can be
no credence to any allegation that Fin24s success can be ascribed to any allegedly anti-
competitive (or otherwise unlawful) practices at all: Fin24s success was not achieved at the
expense of any actionable infringement of Moneywebs goodwill, even were Moneyweb to
show actionable infringement by Fin24 in respect of one or all of the articles in issue.

122.

Plagiarism is not a cause of action in our law:103 Moneyweb must stand or fall by its
copyright and unlawful competition cases alleged, and Moneyweb makes no attempt in
reply to explain the legal basis for any cause of action based on alleged plagiarism the
attempt in reply to broaden impermissibly the scope of this matter beyond the seven
articles in issue referred to in the original notice of motion (by seeking to add an eighth
article in reply), falls to be struck out. We address the so-called Davos article conditionally
on the basis that it is not struck out.

123.

On the facts, in any event, in the period under review, a mere 2.05% of Fin24s published
articles were sourced or aggregated articles.104

124.

Because at issue in this case is a few articles (and not the entirety of Fin24s business
model), any failure by Moneyweb to succeed in its copyright case in respect of any of the
articles in issue, cannot be saved by the law of unlawful competition: there is no species of

102

Record p.270-271 and p.289 answering affidavit paras 12 and 35.2, read with record p.445 replying
affidavit para 72 and p.480 para 145.
103
Record p.308 answering affidavit para 68.8.
104
Record p.290 answering affidavit para 36.

66

unlawful competition at common law on the facts of this case.105 Moreover, unless copying
or amounts to a transgression of the Act, there is no scope for wrongfulness.106

125.

Moneyweb relies (for this alleged cause of action) on the American International News
Service case as explained and followed in Dun and Bradstreet (Pty) Ltd (Moneywebs heads
of argument, paras 104 and following).

126.

Both these cases dealt with very different facts to those present in this application; and the
International News Service case was in addition determined within a legal framework which
excluded any reliance by the plaintiff on copyright protection. In this regard:

126.1. The facts in Dun and Bradstreet (Pty) Ltd were that the plaintiff had compiled
information which he distributes to his clients upon a confidential basis and that the
defendant well knowing its nature and the basis upon which it was distributed, uses
it in his competing business and thereby injures [the plaintiff] in his business (at
221C-D). There is no allegation in the present matter (nor can there be) that Fin24
has misappropriated any of Moneywebs information which was distributed on a
confidential basis. On the contrary, Moneywebs articles are as public as they could
ever be, given that they are published for all to see on the worldwide web.

126.2. And in the International News Service case, as the judgment of Mr Justice Corbett (as
he then was) in Dun and Bradstreet (Pty) Ltd makes clear the defendant copied war
news from the plaintiffs bulletin boards apparently resorting to the bribery of
105

Record p.273 answering affidavit para 18.

Premier Hangers CC v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at 423G-424F. See, too, Ashdown, Payen
Components SA Ltd and Memory Institute referred to above.

106

67

plaintiffs officials in this connection and from early editions of plaintiffs

newspapers and in this way the Hearst newspapers often got the war news on the
street before it appeared in plaintiffs newspapers (at 219H). These quite
extraordinary facts are nowhere present in this matter: there is no allegation (nor
can there be) that Fin24 has ever published its articles prior to those of Moneyweb,
let alone that Fin24 has ever resorted to bribery to obtain Moneywebs articles thus
enabling Fin24 to publish their content first.

126.3. In addition, as appears from a copy of the International News Service case attached
at the end of these heads of argument for convenience (as X), that case was
brought under unlawful competition only (based on alleged misappropriation by the
defendant of the plaintiffs right of property in its news available only by being
kept secret and confidential) as the court described in the following terms:

The federal jurisdiction was invoked because of diversity of citizenship, not

upon the ground that the suit arose under the copyright or other laws of the
United [248 U.S. 215, 233] States. Complainant's news matter is not
copyrighted. It is said that it could not, in practice, be copyrighted, because of
the large number of dispatches that are sent daily; and, according to
complainant's contention, news is not within the operation of the copyright
act. Defendant, while apparently conceding this, nevertheless invokes the
analogies of the law of literary property and copyright, insisting as its
principal contention that, assuming complainant has a right of property in its
news, it can be maintained (unless the copyright act be complied with) only by
being kept secret and confidential, and that upon the publication with
complainant's consent of uncopyrighted news of any of complainant's
members in a newspaper or upon a bulletin board, the right of property is lost,
and the subsequent use of the news by the public or by defendant for any
purpose whatever becomes lawful.

68

126.4. The fact in the International News Service case (not present in this application) which
weighed heavily with that court was that the defendant should not be permitted to
reap what it had not sown by publishing its article before that of the plaintiff,
having bribed the latters officials to achieve this. The court expressed itself in these
terms:

It is to be observed that the view we adopt does not result in giving to

complainant the right to monopolize either the gathering or the distribution of
the news, or, without complying with the copyright act, to prevent the
reproduction of its news articles, but only postpones participation by
complainant's competitor in the processes of distribution and reproduction of
news that it has not gathered, and only to the extent necessary to prevent
that competitor from reaping the fruits of complainant's efforts and
expenditure, to the partial exclusion of complainant. and in violation of the
principle that underlies the maxim 'sic utere tuo,' etc. (our underlining)

127.

In these circumstances, neither the International News Service case nor Dun and Bradstreet
(Pty) Ltd is authority for any extension of the law of unlawful competition in favour of
Moneyweb on the facts of the present matter.107 The facts contemplated by Mr Justice
Corbett in Dun and Bradstreet (Pty Ltd as notionally susceptible to founding a claim in
unlawful competition (conduct that must be regarded as dishonest and as constituting a
fraud upon the compiler of the information) referred to in paragraph 107 of Moneywebs
heads of argument, are not present in this application.

107

We add that Schultz v Butt 1986 (3) SA 667 (A) relied upon by Moneyweb is also wholly distinguishable on
the facts: There can be no doubt that the community would condemn as unfair and unjust Schultz
conduct in using one of Butts hulls (which were evolved over a long period, with considerable expenditure
of time, labour and money) to form a mould with which to make boats in competition with Butt. He went
further. Having trespassed on Butts field, he added impudence to dishonesty by obtaining a design
registration in his own name for the Butt-Cat hull, with the object no doubt of forbidding the field to other
competitors (at 683H-I).

69

128.

The allegations made in paragraph 108 of Moneywebs heads of argument do not come
close, we submit, to meeting the facts upon which the above two cases were determined,
even if the facts alleged by Moneyweb were found to exist (which, for all the above
reasons, they should not be). Moneywebs case on unlawful competition is accordingly
for Moneyweb anything but straight-forward.

129.

Even if International News Service were good law and comparable to the facts of the
present case, neither of which it is,108 the remedy created by the Supreme Court in that
case (an equity-based tort remedy which has no location in South African law) is an
interdict prohibiting the respondent from publishing time-sensitive information before a
particular period has lapsed in order to give the applicant time to publish the news, after
which the information itself is in the public domain. As stated by Lumbard J in Financial
Information Inc v Moodys Investors Service Inc, [t]he hot news doctrine is concerned
with the copying and publication of information gathered by another before he has been
able to utilize his competitive edge.109 That remedy is not asked for, nor is it appropriate.

130.

In the case of Financial Information Inc (above), the question before this court was
dispensed with as follows:

Whether or not reproduction of another's work is immoral depends on whether such

use of the work is wrongful. If, for example, the work is in the public domain, then its
use would not be wrongful. Likewise, if, as here, the work is unprotected by federal
law because of lack of originality, then its use is neither unfair nor unjustified.
108

The doctrine created in the International News Service case was recently rejected as no longer good law
in the United States: per Sack J in Barclays Capital Inc v Theflyonthewall.com Inc 650 F.3d 876 (2d Cir.
2011) at 894.
109
Financial Information Inc v Moodys Investors Service Inc 808 F2d 204 (1986) at para 20. It was held ibid,
as it should be here, that the applicant proved neither the quantity of copying nor the immediacy of
distribution necessary to sustain a hot news claim.

70

131.

It follows that the jurisprudence relied upon by Moneyweb does not support the
contentions it makes in paragraph 109 of its heads of argument; we know of no
jurisprudence or legal principle which does.

C.5

132.

Residual considerations

Fin24 in its answering affidavit referred to six instances where Moneyweb had itself copied
from other sources.110 Although Fin24 referred to the unclean hands doctrine in this
regard,111 it did so only as a foil to Moneywebs allegations against Fin24; ergo, if Fin24s
conduct was unlawful, then surely so was that of Moneyweb. But this is not our primary
contention: our primary contention is that what both Fin24 and Moneyweb have done is
indeed lawful. Moneywebs clumsy attempts to extricate itself from the conundrum it
finds itself in shall be dealt with at the hearing.

D.

133.

CONCLUSION

For the totality of the above submissions, we contend that:

133.1. Moneyweb has failed:

133.1.1.

to show that the articles in issue are original,

133.1.2.

to identify those parts sourced by Fin24 from Moneyweb and to

demonstrate that those parts are original to Moneyweb; and

110

Record pp.278-283 answering affidavit paras 24-25.

Record pp.308 and 301 answering affidavit paras 68.7 and 70 respectively.

111

71

133.1.3.

accordingly, to prove that Fin24 infringed Moneywebs copyright by

making a qualitatively substantial reproduction.

133.2. The three side-by-side comparisons presented above show that the reason
Moneyweb has not done this is because it cannot. The comparisons illustrate, too,
the applicability of section 12(8) of the Act.

133.3. In respect of all the articles in issue, Fin24 has dealt fairly with Moneywebs
corresponding article, as contemplated by section 12(1)(c)(i) of the Act, in that:

133.3.1. Its dealing with Moneywebs article was fair in all the circumstances,
including the fact that as a member of the press, Fin24 has a constitutional
duty to inform public opinion by disseminating news; and

133.3.2. it complied substantially with its attribution provisions by providing an

instant, clickable link back to Moneywebs article.

133.4. There is no basis on the facts before this Court to extend the common law of
unlawful competition in Moneywebs favour: it is nowhere alleged (nor can it be)
that Fin24 has appropriated any property of Moneyweb prior to the latters use and
publication of it, let alone by dishonest or unlawful means, still less on any
commercially-consequential scale.

134.

In the circumstances, we ask that Moneywebs application be dismissed with costs,

including those of two counsel.

72

C.E. Puckrin SC
K. Spottiswoode
Respondents counsel
2 March 2015