Some three months after Moneyweb launched its application in the Gauteng South High Court against Fin24 for copyright infringement and unfair competition, Fin24 has filed its answering papers.
Moneyweb brought the application in September, as we believe that Fin24 breached our copyright by unlawfully lifting content from seven Moneyweb articles published between July 2012 and July 2013.
In Fin24’s answering affidavit Mr Jannie Momberg, editor-in-chief of 24.com, strongly denies that Fin24 has breached Moneyweb’s copyright through its practices, and that Fin24 competes unlawfully with Moneyweb.
Mr Momberg argues that there is no copyright and exclusivity in the news. He goes on to argue that there can therefore be no copyright infringement as alleged by Moneyweb and that Fin24 gave proper attribution to Moneyweb in the articles which Moneyweb has objected to.
He adds that by linking to Moneyweb, Fin24 directed more traffic to Moneyweb’s site than Moneyweb would have attracted through paid-for advertising.
Mr Momberg also argues that Moneyweb has adopted the same practices as Fin24. He cites five articles published by Moneyweb where content was sourced from international publications. In this regard, Mr Momberg contends that the manner of copying of others’ work by Fin24 (and allegedly by Moneyweb) amounts to fair dealing and is an exception to copyright protection.
(Mr Momberg also cites a sixth article, but that article was published in terms of a copy-sharing agreement.)
Ironically, this crystalises the very dispute between Moneyweb and Fin24. The debate is about how and to what extent publications can use the material first published by others and the manner in which they do so. The dispute arises from what we argue is Fin24’s inability to recognise the distinction between what it does, which we contend is copyright infringement and unfair competition, and what is accepted ethical and legal practice when reporting on newsworthy events derived from non-syndicated third party sources.
Moneyweb was highly selective of the third party articles from which it sourced the information. This choice is based on the relevance, news value and the international prominence of the publication in which the articles appeared. It sought to use the content in a fair and permissible manner, with proper attribution.
In my view, this contrasts strongly with Fin24’s approach. Fin24 appears to see news articles in third party publications in the same way it sees press releases, which it can potentially use to augment a low cost editorial strategy.
In the affidavit, Momberg also strongly denies that Fin24’s practices represent “plagiarism on an industrial scale”, as Moneyweb stated in the founding affidavit. He states that Fin24 sourced content from Moneyweb on only 11 occasions during the particular period. Mr Momberg also acknowledges that Fin24 has sourced content on no less than 194 occasions from 39 local and international websites during the period.
This translates to one article every two days.
According to Mr Momberg these 194 articles represent 2.05% of all articles published by Fin24 during the period.
This number is even greater than I had anticipated, and is reflective of the concern I have encountered at other media quarters that Moneyweb is not alone in its unhappiness with the practices of Fin24.
At the heart of this case is the fundamental difference of opinion between Mr Momberg and myself on the function and role of a media institution. This is clearly reflected in the statement Mr Momberg makes in paragraph 74 of his affidavit. I quote the paragraph in full:
“I submit that the method of journalism rather sanctimoniously espoused by the applicant (Moneyweb) – of sending out reporters to the scene of each event, trying to conduct interviews and generally trying to obtain all information first-hand, has become largely outdated and antiquated in the 21st century practice of digital media publishing.
“ Simply put, it is no longer practical – at current speeds of news dissemination due to remarkable progress in recent years of information technology – to delay the dissemination of news until such time as an available reporter may found and dispatched to the scene.
“Practically, media houses rely on the news being disseminated by the first reporter on the scene and then picked up upon and disseminated further by digital publishers, provided the courteous attribution of source is done by means of a hyperlink to it.”
If the above approach becomes the norm, original journalism will suffer a quick and sudden death. It is very expensive to generate original articles and I don’t agree that mere technological change in news dissemination justifies Fin24’s conduct.
I also doubt whether other media institutions, including the several excellent original content publications within Media24, share Mr Momberg’s view.
Moneyweb’s application is the first of its kind in South Africa and I hope it will set legal precedent for so-called fair use and content aggregation policies.
Moneyweb will now formulate its reply, following which we will apply to court for a hearing date.