wrote Moneyweb 7 after the interview. Ms Seggie and Mr Van Niekerk edited the article before it was
published. Ms Seggie also wrote the headline after consulting Mr Rees and Mr Van Niekerk.
[53] Although the bulk of Moneyweb 7 is a transcript of the interview, it is clear that the transcript has been
edited. Words have been omitted in the discretion of the author and/or his editors. The introductory
paragraphs, in Mr Rees's words, set the context of the interview and draw his conclusions. In my view,
Mr Rees has contributed more than merely copying the transcript. I am therefore satisfied that Moneyweb has
proved that Moneyweb 7 is an original work.
[54] My conclusion, in summary, is that Moneyweb has discharged its onus of proving Moneyweb 5, 6 and 7 to be
original works. It has failed to establish originality in respect of Moneyweb 1, 2, 3 and 4.
[55] Before I turn to the issue of substantiality, it is appropriate that I deal with one of the statutory defences
upon which Media24 relies, section 12(8)(a) of the Act. If the subsection applies to any of the Moneyweb
articles, those articles would not enjoy copyright protection. It would be fruitless then to engage in a
determination as to whether there has been substantial reproduction of an article covered by section 12(8)(a)
of the Act.
Section 12(8)(a) of the Copyright Act
[56] Section 12(8)(a) of the Act provides:16
"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."
[57] The parties did not refer me to any decided case that has considered any aspect of section 12(8), nor am I
aware of any.
Page 215 of [2016] 3 All SA 193 (GJ)
[58] The learned author, OH Dean, notes in relation to section 12(8):17
"Unlike all the other exemptions dealt with in the Act, which, as mentioned above, presuppose that copyright subsists
in the work being used and that the user has taken a substantial part of the work (and prima facie has committed an
act of copyright infringement), this exemption goes one step further: it states in effect that the types of work
concerned do not enjoy copyright at all and are indeed in the public domain. They are thus free for use by all, in their
entirety, without restriction and without authorisation being required from anyone."
[59] There are three categories of works covered by section 12(8)(a): official texts and their translations, political
and legal speeches, and certain news of the day.
[60] In Dean's opinion, "official texts of a legislative, administrative or legal nature" include statutes, regulations,
court judgments and government notices. I would add awards and rulings of administrative tribunals,
recognising that the list is not exhaustive. According to Dean:
"This makes perfectly good sense since it is in the public interest that the general public should be easily aware of
information and edicts disseminated by government during the course of carrying out its basic functions."18
[61] But the exemption in section 12(8)(a) is not limited to official texts of a legislative, administrative or legal
nature. It covers also "speeches of a political nature [and] speeches delivered in the course of legal
proceedings", thus extending to literary works not produced by government. "Speeches" in this context
means speeches that have been reduced to material form. This is because section 2(2) of the Act requires all
works eligible for copyright to be reduced to material form. A speech that has not been reduced to material
form is not eligible for copyright, regardless of the provisions of section 12(8)(a). For section 12(8)(a) to have
any purpose, it must refer to works that have been reduced to material form.
[62] In my view, this too makes perfect sense. It is certainly in the public interest that the general public should be
easily aware of political speeches, and arguments in the course of legal proceedings, all of which are already
in the public domain.
[63] That brings me to "news of the day that are mere items of press information". In my view, "news of the day"
means current news. I can think of no good reason why the phrase should be limited to a 24hour news cycle.
[64] However, it is clear from the words used that section 12(8)(a) is not intended to apply to all "news of the
day", but only to "mere items of press information". The subsection certainly does not exempt from copyright
protection all current news articles. Section 12(1)(c)(i) of the Act, dealt with below, regulates that issue.
[65] Mr Ginsburg submitted that the use of the word "mere" further qualified the "items of press information". For
the reasons set out below, I do not agree.
Page 216 of [2016] 3 All SA 193 (GJ)
[66] According to The Concise Oxford Dictionary of Current English (eighth edition), the word "mere" is an adjective
meaning "that is solely or no more or better than what is specified". On this view, the word does not add or
take away anything; it simply underlines that which is specified.
[67] Section 12(8) appears to be derived from article 2(8) of the Berne Convention, providing: "The protection of
this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere
items of press information."19 The Berne Convention lays down certain minimum standards of protection that
must be granted to works under copyright in the member countries.20
[68] Article 2(8) of the Convention appears to apply more widely than section 12(8) of the Act. Put differently,