Copyright and Originality: Preserve your Notes!

Most people know that before you can prove an infringement of copyright, you need to prove that the material (‘work’) that you claim is subject to your copyright must be original enough (and not subject to copyright exceptions) to be able to be copyrighted. As the bar to ‘originality’ is relatively low most attorneys assume that any article that is published will be subject to the author’s copyright.
This is exactly the problem that the plaintiff (Moneyweb) faced in the recent case of Moneyweb (Pty) Limited v Media 24 Limited and Another (31575/2013) [2016] ZAGPJHC 81; [2016] 3 All SA 193 (GJ); 2016 4) SA 591 (GJ) (5 May 2016). In this matter Moneyweb claimed that Fin24 had copied 7 of their articles. While there were several legal issues that were addressed, the most important one really related to whether the 7 articles were capable of being subject to copyright rather than whether Fin24 had copied the articles. Put differently, if the articles written by Moneyweb staff / freelancers were not capable of being copyrighted then anyone (including Fin24) could freely copy the entire article and there would be nothing that Moneyweb could do about it.
Unfortunately for Moneyweb this is exactly what happened to 4 of the 7 articles. The judge in this matter, Acting Judge D.I. Berger, ruled that Moneyweb had failed to provide any support for the allegation that those 4 articles had a sufficient degree of originality to attract copyright protection. The major reason for this is that Moneyweb had failed to provide sufficient support for the allegation that the articles were original. Aside from the bald statement that the articles were an original work and required ‘independent effort, skill and expertise to write’ there was no indication of how much article 1 (for example) took from the press release and how much truly required ‘independent effort, skill and expertise to write’. In short, the judge noted, he was note able to discern the nature and extent of the author’s contribution (and so could not conclude that the article had the necessary originality to attract copyright).
Of course in a case of copyright infringement that is the end of the ball game. A failure to prove originality is fatal to the plaintiff’s case (for that particular article) and so Moneyweb was unsuccessful in its claim for the breach of copyright for the first article as – quite simply – the first article was not able to be copyrighted.
So what do we learn from this?

• It is really important for authors to keep their notes and previous drafts of the articles they write; and
• These notes and previous drafts as well as sources of information for the article must be provided to the court in a copyright case to enable the judge to assess whether the articles required ‘independent effort, skill and expertise to write’.

The most tragic thing about the fact that the judge found that the Moneyweb articles 1-4 were not original enough to attract copyright protection was that this really did not address the dispute before the court. It is quite possible that Moneyweb’s attorneys would have been able to place sufficient evidence before the court to enable it to finally conclude that the article did / did not have the required originality to benefit from copyright protection. Instead we are left wondering whether the articles may in fact have attracted copyright protection if the Moneyweb’s attorneys had placed sufficient evidence before the judge to assist him in making this determination. An important lesson for all Intellectual Property attorneys.