When is copy copied?

Contrary to popular opinion, the court ruling on Moneyweb’s claim of plagiarism by Fin24 is actually a victory for journalism

It began in 2013 with accusations by business news site Moneyweb of industrial-scale plagiarism committed by its rival Fin24, and was soon accompanied by anguished editorials on journalism’s demise. Three weeks ago the standoff concluded with barely a whimper as Fin24 prevailed with a 70% costs order in its favour. I must say, I’m not an unbiased observer. Fin24 is owned by Naspers, for which I was the general counsel and chief intellectual property officer.

I also have decades of experience in intellectual property law, so I can confidently say that, contrary to what you may have heard, the ruling was a big win for journalism.

How could that be, given that many pundits said the ruling opens the way for “large-scale copying” of the work of others?

The fact is that genuine investigative journalism remains protected by this ruling. Equally, the time-honoured tradition of competitor journalists building stories on each other’s work remains protected.

Acting judge Daniel Berger found that journalists cannot monopolise the facts or news — which is good for transparency and democracy.

The devil of this case is in the detail: over about six months, Fin24 sourced content in seven articles from earlier Moneyweb articles. Moneyweb sued for copyright infringement, drumming up sympathy with predictions of the death of journalism.

In all but one case, however, the court said, “not so”. In four of the articles, Moneyweb tried to prevent Fin24 from republishing material Moneyweb itself had regurgitated from another source. The court was direct: one can’t do that and claim “copyright protection”.

In one of those articles, dealing with MPs’ salaries, Moneyweb’s story merely repeated what was handed out at a parliamentary briefing a few hours earlier. Now, how can anyone claim exclusivity to a recitation of MPs’ salary figures made available by the government?

Equally, Moneyweb’s article on Group Five simply echoed comments made by the CE on a conference call, and its article on McDonald’s repeated what the MD said at a media briefing.

For the fourth article, on the Hout Bay castle, Moneyweb had rearranged content from a Sotheby’s press release, adding only an “insubstantial” amount.

None of this could be considered “investigative” or even “enterprise” journalism. The court correctly found nothing original to protect.

So why do I say this is good for journalism?

Simply put, it means no-one can copy public domain material and “with a mere lick of paint”, deem it “exclusive property”. Everyone gets unfettered access to the facts.

The other three articles Moneyweb produced in its case were “investigative” in nature.

However, the court found that for two of those articles, dealing with the Defencex Ponzi scheme, Fin24 took only a small amount of content from Moneyweb and built its own, quite different stories around that.

And in the instance where Fin24 did copy a substantial amount of original material, the court found that there had been copyright infringement. That Moneyweb article was based on an interview broadcast by Moneyweb. In the court’s view, Fin24 had copied too much from the Moneyweb article.

The upshot: true investigative journalism is actually reinforced by this ruling.

Where does this leave Moneyweb’s claim that it was “plagiarism on an industrial scale”? The judge made short shrift of it, stating “clearly, Moneyweb’s claim . . . is not supported by the facts and is simply designed to colour what should be a focused inquiry”.

So why was this case filed in the first place? Was it an attempt by Moneyweb to bolster its reputation among its peers and advertisers?

Or was it another in a litany of cases filed by Caxton, Moneyweb’s parent company, against Naspers?

Now, there is a story worthy of investigative journalism.