[106] In my view, the test approved by Lord Phillips cannot simply be imported into our law. To start with, our
Copyright Act must be interpreted through the prism of our Constitution, the Constitution of the Republic of
South Africa, 1996. In order to survive constitutional scrutiny, the Act must be capable of being interpreted in
a manner that is consistent with the Constitution.
[107] Section 6 of the Act declares that copyright in a literary or musical work vests the exclusive right in the owner
to (amongst others) reproduce or publish the work. According to Dean:
"The right to control the use of a work in all manners in which it can be exploited for personal gain or profit is an
essential right under the law of copyright and that law does not achieve its objective unless such essential right is
granted to the full."44
[108] Copyright is an intellectual property right. It is protected by section 25(1) of the Constitution:
"No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary
deprivation of property."
A law of general application could therefore limit a right in terms of section 25(1), provided that the law meets
the requirements of section 36 of the Constitution. It follows that the right to reproduce or publish a
copyrighted work is not absolute.
[109] On the other hand, section 16(1) of the Constitution provides that everyone has the right to freedom of
expression. This right includes "freedom of the press and other media" and "freedom to receive or impart
information or ideas". Similarly, the right is not absolute.45
[110] Does section 6 of the Act clash with section 16(1) of the Constitution? I think not. Section 6 must be read with
section 12(1) which in turn must be interpreted in a manner consistent with the constitutional right to freedom
of expression.46
[111] Section 12(1) only becomes relevant after a finding of substantial reproduction. The section contemplates a
situation in which a newspaper publishes an article, reporting on current events, that has substantially been
reproduced from another article previously published in another newspaper. In such a situation, the party
who has published the later article will not be liable for copyright infringement, despite substantial
reproduction, if it can prove that it dealt fairly with the original work. It is in this context that the test
approved by Lord Phillips can be brought into our law.
[112] What then are the facts relevant to the test? In my view, the relevant facts must be limited to those existing
at the time of dealing, ie at the time of publication of the later article. A journalist who is about to reproduce
part
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of an article ought to be able to assess whether or not she is about to deal fairly with the article. She cannot
anticipate the extent of the copyright owner's loss. She can only assess the fairness of her conduct on the
facts existing at the time. Her obligation, in exercising her right to freedom of expression, is to deal fairly with
the original work. The test is an objective one.
[113] In my view, the factors relevant to a consideration of fairness within the meaning of section 12(1)(c)(i)
include: the nature of the medium in which the works have been published; whether the original work has
already been published; the time lapse between the publication of the two works; the amount (quality and
quantity) of the work that has been taken; and the extent of the acknowledgement given to the original
work. One factor may be more or less important than another, given the context in which publication occurs.
The list of factors is not exhaustive.
[114] Respectfully, I agree with the learned authors of The Modern Law of Copyright and Designs that it is "impossible
to lay down any hardandfast definition of what is fair dealing, for it is a matter of fact, degree and
impression". Fairness is an elastic concept. A determination of "fair dealing" involves a value judgment and will
depend on the particular facts or circumstances at the time of dealing.
[115] In its founding affidavit, Moneyweb makes the extravagant claim that the conduct of Fin24 "amounts to
systematic plagiarism on an industrial scale and forms a core part of its business model in an effort to gain a
commercial advantage for itself". The respondents point out that, during the period covered by Fin24 1 to
Fin24 7 (26 July 2012 to 4 July 2013), Fin24 published more than 10 000 articles. During that period, only 11
articles sourced content from Moneyweb (including the articles at issue in this application). In addition, during
the same period, 194 articles published by Fin24 contained content sourced from nonsyndicated third parties.
[116] Clearly, Moneyweb's claim of "systematic plagiarism on an industrial scale" is not supported by the facts and is
simply designed to colour what should be a focused inquiry. Each of the Fin24 articles that have caused
offence has to be assessed on its own and in relation to the relevant Moneyweb article. In addition, it might
be possible that a pattern of offending articles could for that reason negative a defence of "fair dealing", but
that is not the position in this case.
[117] Moneyweb also attempts to put Fin 24's "aggregation guidelines" at the centre of the inquiry into "fair
dealing". In my view, the attempt is misdirected.
[118] The guidelines, attached as an annexure to the respondents' answering affidavit, state:
"It is part of 24.com's editorial policy to publish content aggregated from various sources. When aggregating content,
take note of the following guidelines:
1.
Never use more than 30% of the original source.
2
Rewrite all content.