section 12(8) affords greater protection to original works. Whereas article 2(8) would exempt all news of the
day and miscellaneous facts having a certain character, section 12(8) exempts only certain news of the day.
[69] There is no issue with the Copyright Act affording greater protection. The Berne Convention lays down
minimum standards.
[70] I n m y v i e w , t h e u s e o f t h e a d j e c t i v e " m e r e " i n a r t i c l e 2 ( 8 ) d o e s n o t a d d a n y t h i n g t o t h e c l a s s o f
"miscellaneous facts". If the adjective had been omitted, article 2(8) would still exempt miscellaneous facts
having the character of items of press information, and nothing more. Similarly, section 12(8) exempts news of
the day consisting of items of press information, and nothing more.
[71] Once again, it should be noted that "news of the day that are mere items of press information" refers to
works that have been reduced to material form. It matters not whether these are original works: if they are,
section 12(8) applies; if they are not, section 2(1) applies; either way they are not entitled to copyright
protection.
[72] What are these "items of press information" that are exempted from copyright protection? In my view, this
includes all information communicated to the media in material form or subsequently reduced to material form.
This would include, but not be limited to, press statements and press interviews concerning "news of the day"
which journalists, and anyone else, would be free to use, in whole or in part, without restriction and without
authorisation being required from anyone.
[73] Anyone who communicates information to the media intends that information to be put into the public domain.
In my view, it is certainly in the public interest that the general public be easily aware of information
communicated to the media that is either already in the public domain or soon will be.
[74] In this application, items of press information, communicated in material form or subsequently reduced to
material form would be: the information disclosed at the press conference attended by Ms Cloete, or given by
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Mr Upton in the conference call with Ms Planting and others, or gathered by Ms Seggie during the media visit
at McDonald's; the press release issued by Sotheby's; Ms Schnehage's interview with Ms Smith; and
Mr Tarrant's interview with Mr Griffith.
[75] In all of these instances, the items of information were given to the media with full knowledge that the
information would be put into the public domain. That was not the case with Mr Walker's address at the
University of the Witwatersrand (which was closed to the media) and Mr Rees's interview with Mr Walker
(where he had posed as a potential investor). In these two cases, there was no expectation that the
information would be given to the press and put into the public domain; they were therefore not items of
press information.
[76] The fundamental issue, however, is whether any of the Moneyweb articles could be regarded as "news of the
day that are mere items of press information". In my view, the answer depends on whether the article is an
original work or not. If it is, then the article will contain more than "mere items of press information" because
the author's contribution will have constituted more than mere copying. Section 12(8)(a) would not apply. On
the other hand, if the Moneyweb article is not an original work, the article will be no more than a repetition of
the "news of the day that are mere items of press information". Section 12(8)(a) would then apply.
[77] Accordingly, I find that section 12(8)(a) of the Act does not apply to Moneyweb 5, 6 and 7. Regarding
Moneyweb 1, 2, 3 and 4, I have not found that they are not original works. What I have found is that
Moneyweb has not discharged its onus of proving originality. The onus of proving a defence in terms of
section 12(8)(a) rests on the respondents. In order to discharge this onus, the respondents would have to
prove that Moneyweb 1, 2, 3 and/or 4 contain nothing more than "mere items of press information". This they
have not done in relation to any of the four articles. The respondents have therefore not proved that section
12(8)(a) applies to Moneyweb 1, 2, 3 and 4.
Substantiality
[78] The issue here is whether Media24 has reproduced any substantial part of the articles that have been proved
to be original works Moneyweb 5, 6 and 7.
[79] In Galago Publishers (Pty) Ltd v Erasmus,21 Corbett JA (as he then was) set out the test to be applied in
determining whether there has been an infringement of copyright:
". . . [I]t 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,
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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
. . ."22
"As to what is meant by the reproduction of a 'substantial part' of the plaintiff's work, I would simply refer to what was
stated in the Ladbroke case supra by Lord Reid (at 469):
'If he does copy, the question whether he has copied a substantial part depends much more on the quality than on the