determined in a subsequent enquiry in the event that I hold the respondents liable to compensate it.
[5] Seven articles were first published on Moneyweb's website. Although the articles published under the banner
of Fin24 are not wordforword copies of the articles published by Moneyweb, it contends that Fin24
unlawfully "copied, appropriated and/or plagiarised" its earlier articles.
[6] The parties filed extensive heads of argument and argued the matter before me over two days. Three issues
appear to be at the centre of this matter:
First, there is a dispute concerning the originality of Moneyweb's articles. Media24 argues that
Moneyweb has failed to prove originality in any of its articles.
(a)
Page 196 of [2016] 3 All SA 193 (GJ)
(b)
Second, if Moneyweb is able to prove originality in any of its articles, the issue arises as to whether
Media24 has reproduced a substantial part of the relevant article. Media24 admits reproduction of part
of the Moneyweb articles but denies that the reproduction was substantial.
(c)
Finally, Media24 contends that it is absolved from liability by virtue of the statutory defences in sections
12(1)(c)(i) and 12(8)(a) of the Act.
Originality
[7] Section 2(1) of the Act provides that certain works, including literary works, shall be eligible for copyright "if
they are original". The Moneyweb articles clearly fall within the definition of "literary work". That much is
common cause.
[8] There is no definition of "original" in the Act. What is clear is that creativity is not required to make a work
original. A work is considered to be original "if it has not been copied from an existing source and if its
production required a substantial (or not trivial) degree of skill, judgment or labour".1
[9] In CCH Canadian Ltd v Law Society of Upper Canada2 the Supreme Court of Canada held that:
". . . an 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 characterised 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'."
[10] It is nevertheless possible to achieve originality even where the author of a work makes use of existing
material. Nugent J (as he then was) approved the test to be applied in such circumstances:3
". . . An artistic work is eligible for copyright if it is 'original'. The following passage from Copeling Copyright and the
Act of 1978 at p 15, which was cited with approval in Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A)
at 22H23A, conveniently summarises what is meant by that concept:
'To be original a work need not be the vehicle for new or inventive thought. Nor is it necessary that such thoughts as
the work may contain be expressed in a form which is novel or without precedent. 'Originality', for the purposes of
copyright, refers not to originality of either thought or the expression of thought, but to original skill or labour in
execution. All that is required is that the work should emanate from the author himself, and not be copied . . .
The requirement that the work should emanate from the author himself and not be copied must not be interpreted as
meaning that a work will be regarded as original only where it is made without reference to existing subjectmatter.
Indeed, were this so the great majority of works
Page 197 of [2016] 3 All SA 193 (GJ)
would be denied the benefit of copyright protection. It is perfectly possible for an author to make use of existing
material and still achieve originality in respect of the work which he produces. In that event, the work must be more
than simply a slavish copy; it must in some measure be due to the application of the author's own skill or labour.
Precisely how much skill or labour he need contribute is difficult to say for much will depend upon the facts of each
particular case.'"
[11] There was some dispute before me as to whether the "sweat of the brow" test is part of our law. Mr Puckrin
SC, who appeared on behalf of the respondents with Mr Spottiswoode, submitted that:
"pure industriousness or 'sweat of the brow' is not (or at least no longer) the test for originality. . . . 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)
. . ."
He relied for these submissions on the decisions in Haupt, CCH Canadian and Waylite Diary CC v First National
Bank Ltd 1995 (1) SA 645 (SCA) at 649I [also reported at [1995] 1 All SA 451 (SCA) Ed].
[12] Mr Ginsburg SC, who appeared on behalf of Moneyweb with Mr Budlender and Mr Marriott, insisted that "sweat
of the brow" is still the test in our law.
[13] In Haupt, having quoted from CCH Canadian at its paragraph 25,4 Streicher JA noted:5
"It should be noted that no mention is made of labour. In para 24 it is said '(t)he "sweat of the brow" approach to
originality is too low a standard'. In this regard the Canadian law differs from our law and the law of the United
Kingdom, as also the Australian law. See Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A) at 652G
653C and, in respect of the Australian law, Ricketson The Law of Intellectual Property: Copyright, Designs and
Confidential Information at paras 7.35 and 7.60, where it is said:
'(I)f the expression in question represents the independent application of knowledge, judgment, skill or labour on the
part of the author, this will be sufficient for the statutory requirement (of originality).'