The media landscape is an unfair playground

I always find it interesting when two children fight. They come up with the most bizarre accusations before it either ends in a fist fight or tears.

Here I of course refer to Caxton-owned Moneyweb and Media24’s Fin24 as the children and their copyright case the actual fight.

The allegations started back in September 2013 when Moneyweb first accused Fin24 of copyright infringement. In May 2015, they took Fin24 to court, but the final ruling was only made later on.

Now I don’t always enjoy children fighting, unless it’s for a good cause, that is.

What Moneyweb’s accusations highlighted was that our country’s Copyright Act is ancient. 1978-ancient. That’s 38 years ago for those too lazy to do the math. The internet didn’t even exist back then! Yet these two online news agencies had to adhere to old-school print laws.

Maybe that is why the South African media, especially online, sat up and took notice in May when the Moneyweb versus Fin24 case finally received the conclusive ruling.

But what led to last year’s court case? Basically Moneyweb alleged that Fin24 unlawfully aggregated seven of its articles and wanted them removed from their website.

According to Moneyweb these articles all contained content that was original and created at great expense to the company. To Moneyweb editor Ryk van Niekerk, this was a massive violation and termed it “systematic plagiarism on an industrial scale”.

At this point I like to imagine one child calling out the other for cheating in a game of hide-and-seek. They bring in an adult to make the ruling and, to the crying child’s dismay, the other one gets off scot-free.

But let’s return to the real world, shall we? Moneyweb probably thought they were going to win their case, seeing as our country still adheres to the abovementioned old-school ‘print’ Copyright Act, the one from 1978.

However, that’s not what happened. The South Gauteng High Court ruled Moneyweb’s claims as “extravagant” and that Fin24 only committed copyright infringement on one of the articles in question.

And Moneyweb’s originality claim? Well, in terms of originality, the Copyright Act states that an article needs to prove its ingenuity and uniqueness in order to qualify for protection.

Moneyweb failed to prove that four of their articles were completely original, leaving a red-faced Van Niekerk.

Next, Judge Daniel Berger found that only three of their articles were actually original enough to warrant any interest. Extravagant, for sure.

What’s noteworthy though, is that Berger found that two of the original articles were adequately aggregated by Fin24, where they didn’t duplicate sizeable chunks from the primary copy.

Though, according to Berger, the previously mentioned naughty article was almost identical to the original. It’s rather disappointing that only one article was declared plagiarised. You can only imagine Moneyweb’s frustration.

But this memorable court case reached its crescendo with a specific ruling by Judge Berger. A ruling that will undoubtedly change the South African online media landscape and its view on copyright infringement.

He ruled that if a website used a hyperlink in its article to refer back to the original one, it would count as adequate and satisfactory in terms of citing the source.

I suppose this was the coup de grâce in Moneyweb’s case. This ruling effectively told them that they could do nothing about Fin24’s aggregation and then slammed the door in their face.

But not before billing them, of course. Moneyweb has to pay 70% of Media24’s legal costs. Now that was the last nail in the coffin.

Returning, if I may, to the playroom fight analogy, we find the child who cried foul-play did not get the justice they craved but instead got detention.

Perhaps they got detention for not being a team player, not willing to share and wanting all the glory for themselves.

Media24’s chief executive Esmaré Weideman spoke a lot of truth in her response to the ruling. She pointed out that finding and reporting of stories that are of interest to the public should not be monopolised.

“It would lead to the illogical result where the first reporter can monopolise a news story and prevent another reporter from re-reporting the story’s core elements,” said Weideman. Kind of like this article.

Her point that such a move would destroy a lot of careers is a valid one. If we all had to find our own original story every time, the media industry would come to a standstill.

What emerged as a playground fight enlightened us to the fact that our Copyright Act is ancient and is begging for an update. It also highlighted what procedures online media need to take in the future, and most importantly, that life is not fair.

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Author: walterhaywardbotha

I'm a Journalism Honours student at the University of Stellenbosch in South Africa.

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