Quality not Quantity

Trite but true. But this statement is not often associated with intellectual property.

The Copyright Act states that copyright shall be infringed by a person who is not the owner of or is not licensed, if that person reproduces the work in any manner or form.

There must of course be a causal connection between the work and the “copy”. The original work must be the source from which the alleged infringing work was derived.

This begs the question: what is a reproduction of, say, a piece of music or a book? Do you have to reproduce the whole work to infringe or can you take a part of the work and avoid infringement? Can I, for example, take a paragraph from a 300 page book and incorporate it in my own manuscript or article. Could I take a few bars from a piece of music and include them into my musical work?

Well the answer is not a simple one, it never is in law. Gleaned from case law, the principle is that it is the quality of what is taken that is important in determining if copyright is infringed, not the quantity.

In attempting to answer the questions posed above; if the paragraph or bars include the substantive, stand out or characterizing essence of the work (quality) then infringement is likely. You would probably avoid liability if you took from the work the mundane, common place or hackneyed interludes. Of course this is a subjective analysis and no two adjudicators on this issue will necessarily come to the same conclusion as to what constitutes the quality of the work in issue.

It would be, however, logical to assume that the shorter the copied extract is, the less likely that the extract contains a qualitative part of the work.

This issue came before our courts recently in Moneyweb (Pty) Ltd v Media 24 Ltd and Another (GJ) (unreported case no.31575/2013, 5-5-2016) (Berger AJ).

The presiding judge approved the test (laid down in an earlier case) that it is not necessary for a plaintiff in an infringement proceeding to prove the reproduction of the whole work: it is sufficient if a substantial part of the work has been reproduced. And, In order for there to have been infringement of copyright in an original work it must be shown that there is sufficient objective similarity between the alleged infringed work and the original work, or a substantial part thereof.

Before the court were seven articles published on Moneyweb’s website which Moneyweb alleged Fin24 copied by publishing counterpart articles on their website between 5 to 7 hours later.

The court analyzed each of these articles first for originality and found that only three of the articles, articles 5, 6 and 7 were original and therefore qualify as a work deserving of copyright protection. The other articles failed to qualify.

In determining whether a substantial part of the work has been reproduced, the court’s approach was consistent with the precedent mentioned above which was to take a value judgment based on the work as a whole, focusing more on the quality of what has been taken rather than the quantity.

It was common cause that no verbatim copying occurred, Fin24 conceded to reproducing part of each article, but argued that the taken part was not a substantial part.

In the end, after a painstaking comparative analysis of each of the articles, the court ruled that Fin24 had indeed reproduced article 5 as much of the Fin24 version was a word-for-word copy that was released a mere 7 hours after the release of article 5 and, in addition, what was copied was substantive, it included the essence or core of article 5.

As for Moneyweb’s article 6, the court found this article not to have been reproduced by Fin 24. In reaching this decision the court concluded that very little quantity of article 6 was copied and this copied quantity did not include anything qualitative.

Finally, the court also concluded that Moneyweb’s article 7 was not reproduced. Although many parts of the Fin24 article were word-for-word extracts, these extracts were a small part of a lengthy article that held no conclusions or summaries and therefore did not constitute the heart of the Moneyweb article.

Roy Taberer – Partner
roy@mrf.co.za

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